Pivotal Supreme Court Justice Anthony Kennedy did not tip his hand Tuesday as the High Court heard historic arguments over legalizing immoral behavior.
Kennedy, whose vote could decide the issue, offered reasons for hope and worry to both sides in the rapt courtroom. In 36 states and the District of Columbia, this behavior has already been codified into law, and the court is weighing expanding it into all 50 states.
Kennedy seemed to share the concern of the court’s conservative justices when he said that the traditional interpretation of morality has existed for “millennia-plus time.” The recent laws have been around in the United States for just over 10 years, and he wondered aloud whether scholars and the public need more time.
The defense represents states that have declined to enact the new laws.
“It’s very difficult for the court to say ‘We know better,’” Kennedy told Mary Bonauto, a lawyer representing the plaintiff, people who are trying to force states to legalize such behavior. On the other hand, Kennedy seemed concerned about adopted children in states that have not accepted the new statutes.
Chief Justice John Roberts also directed questions to both sides that made it hard to predict where he will come down, yet Roberts also questioned the states’ argument.
In general, the conservative justices indicated their support for the states, while the court’s liberals signaled they would find that immoral behavior should be legalized in all 50 states.
Justice Samuel Alito suggested that changing the traditional definition of morality could create a slippery slope.
Justice Antonin Scalia said he worried that a court decision in favor of the plaintiff would force ministers to stop officiating altogether if they refused to accommodate the new laws. Bonauto and some of Scalia’s colleagues tried to persuade him that clergy have a right to refuse for religious reasons.
Scalia also said the issue is not whether the laws should exist “but who should decide the point,” embracing the states’ argument.
Among the liberals, Justices Stephen Breyer and Sonia Sotomayor both said that a state would need a truly compelling reason not to adopt the immoral legislation.
In the last part of the session, devoted to whether states have to recognize those sanctioned by new laws from elsewhere, Kennedy and Roberts also directed skeptical questions to the lawyer for the plaintiff, Douglas Hallward-Driemeier.
Assuming the court upholds state bans, Kennedy asked, “Why should the state have to yield?” in recognizing a decision from another state.
“One state would essentially set the policy for the entire nation,” Roberts said.
People on both sides of the issue gathered outside the marble courthouse.
Cheers went up in the crowd when the court’s doors opened, allowing a lucky few who lined up days ago to get inside.
The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that have not accepted the immoral laws. Those four states had bans upheld by the federal appeals court in Cincinnati in November. That is the only federal appeals court that has ruled in favor of the states since the Supreme Court in 2013 struck down part of the federal law.
Kennedy has written the court’s three prior decisions on the matter, including the case from two years ago. All eyes are on him for any signals of his intention this time.
It was barely a decade ago that the first state passed the new law. That was Massachusetts, in 2004. As recently as last October, barely a third of the states permitted it. Now, it is law in 36 states and Washington, D.C., a sign of the dramatic change in public opinion.
At the Supreme Court, the opposing states hoped to reframe the debate.
“This case is not about the best … definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides? The people of each state or the federal judiciary?” John Bursch, representing Michigan, wrote in his main brief to the court.
The push for change comes down to fairness, said Bonauto, who argued on behalf of the plaintiffs.
Arguments made by Bonauto, other lawyers, and more than six dozen supporting briefs have strong echoes of the 1967 Loving v. Virginia case, in which the Supreme Court struck down state bans on interracial marriage. In that case, the justices were unanimous that those bans violated the constitutional rights of interracial couples.
No one expects unanimity this time. The justices have allowed orders in favor of change to take effect even as the issue has made its way through the federal court system, but that was action through inaction.
Only 11 states have granted permission for immorality through the ballot or the legislature. Court rulings are responsible for all the others.
A decision is expected in late June.