LGBT students at Sam Houston State University and others around the world will soon have a landmark victory or a heartbreaking setback.
The U.S. Supreme Court heard oral arguments for two gay marriage cases on Tuesday and Wednesday, the justices’ questions gave the public a glimpse into possible decision.
The federal definition of marriage is the center of Windor v. United States. The Defense of Marriage Act, passed in 1996, limited federal recognition of marriage to between a man and a woman.
Paul Clement, the lawyer defending DOMA, argued the federal government has the right to define marriage for purposes of federal law, just as states traditionally have the right to do it for themselves. In addition, he said DOMA was enacted to ensure that marriage was treated uniformly in all states.
Justice Anthony Kennedy, usually known as the moderate justice, attacked the DOMA defense lawyer questioning his attack on federalism.
He said traditionally the individual states have had the right to define marriage. The federal government in this case, he said, is redefining marriage.
Traditionally liberal leaning Justices Ruth Bader Ginsburg, Elena Kagan, Stephen Breyer and Sonia Sotomayor questioned the logic of DOMA’s defense.
Ginsburg attacked the statute on what she described as “pervasive” discriminatory action.
“The state is saying there are two types of marriage: the full marriage and this…skim milk marriage,” she said.
DOMA currently prevents same-sex couples from recieving federal benefits including tax exemptions, social security marriage benefits, family medical leave, recognition for immigration purposes, employment benefits of federal workers, and federal health coverage, among the 1,138 provisions that are affected by DOMA.
Those advocating for DOMA to be overturned said the equality movement is becoming widespread.
Chief Justice John Roberts said the only reason for the rise in support “is because your side is more politically engaging.”
The second Court case, Hollingsworth v. Perry, questions the ability of states to define marriage. The same five justices heavily critiqued the lawyer defending Proposition 8, which defines marriage as between a man and woman. Texas is one state that has constitutionally banned same-sex marriage.
The defense, represented by Charles Cooper, said the traditional definition of marriage was primarily for purposes of procreation.
Kagan and Ginsburg immediately pounced on the idea that Prop 8 would also ban sterile couples and those over the age of 55 from the ability to marry.
“Let me assure you, there aren’t many children going to come out of those marriages,” Kagan said.
Cooper said even in the cases of couples over 55 the chance that couples would procreate would still exist.
Kennedy also asked Cooper for specific harms gay marriage would allow for. Cooper said it would alter the definition of marriage on the basis of social ideology rather than necessity.
Kennedy was unhappy with the answer saying it didn’t give concrete examples and pressed him further.
Justice Antonin Scalia interjected in an attempt to answer Kennedy’s question.
“I don’t understand why you don’t give any concrete examples,” Scalia said. “Allowing gay marriage would allow for [joint] adoption.”
Scalia said there has been no answer if children raised in single-sex households would be at a disadvantage over other children in opposite-sex marriages.
Justices Samuel Alito and Clarence Thomas, along with Roberts and Scalia, are considered the more conservative justices. Thomas chooses not to speak at oral arguments.
The decision is expected in July, or early in the summer.