Justice Kennedy sends mixed signals during argument on gay marriage

Today, as I mentioned here, the Supreme Court heard oral argument in Obergefell v. Hodges in which the issue is whether same-sex couples have a constitutional right to be deemed by the state “married” if that’s what they want. Lyle Denniston of Scotusblog filed this report on the argument. The Washington Post’s account is here.

The argument confirmed the impression that the decision will be 5-4, with Justice Kennedy casting the deciding vote, though it’s conceivable that Chief Justice Roberts’ vote might also be in play. It has been widely assumed that Kennedy will vote with his four liberal colleagues in favor of a constitutional right to same-sex marriage.

During the argument, some of Kennedy’s remarks indicated a reluctance to find such a right. Why, he asked, should nine unelected justices change the definition of marriage as only between a man and a woman when that concept has existed for “millennia?” Why, indeed.

But Kennedy also invoked terms like “dignity” and “ennoblement” when pushing the attorney defending state bans of same-sex marriage to defend their constitutionality.

Given a choice between writing an opinion upholding judicial modesty and an opinion that waxes poetic about dignity and ennoblement, my bet is that Kennedy will write the latter opinion.

The Supreme Court heard separate argument on the question of whether a state that doesn’t provide for gay marriage is required by the Fourteenth Amendment to recognize same-sex couples as married if they are married in states that provide for such marriage and then come to the holdout state. Denniston describes the argument of this issue as “somewhat bland and listless.” Perhaps this was because if, as seems likely, the Court finds a constitutional right to gay marriage, the question of “recognition” disappears.

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