Supreme Court Justices take an unusual stand on same-sex marriage

This week, the oral arguments were heard in the Supreme Court in the case of Obergefell v. Hodges. In this case, the state of Ohio is being sued for the recognition of same sex marriage. It is actually a consolidation of four cases involving same sex marriage and which ever way the Court rules it is certain to be a landmark case.

It will not be difficult to start making some predictions about how those on the Court are likely to vote – past precedents have been set in cases like Windsor v US in 2012, where the Court struck down key sections of the Defense of Marriage Act which defined marriage as between a man and a woman. Equally, the notional ideologies of the Justices is rather well known, and to divide the Court along roughly ‘liberal’ and ‘conservative’ lines is not difficult.

However, Tuesday was different.

The presentation of oral arguments lasts only one hour (half an hour for each side) and the Justices can freely interrupt to ask questions; often these questions can give away a Justice’s thinking. On Tuesday, two of the Justices went much further. Ruth Bader Ginsburg, a bastion of the liberal wing of the Court, “eviscerated” the opponents of same-sex marriage in her comments:

“Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that state should be allowed to have? To cling to marriage the way it once was?”

Her suggestion seems to be that the Court should recognise that times have changed. She is not necessarily going to find it easy to get the other Justices to agree with her however. After a heckler was evicted from the courtroom for yelling, “If you support gay marriage, you will burn in Hell! It’s an abomination!”, Justice Scalia was remark, “it was rather refreshing, actually”. This too has courted controversy on the internet over exactly what Justice Scalia meant by this joke; it certainly seems to imply an upcoming disagreement with Justice Bader Ginsburg. While this is not surprising given the ideology of these two Justices, it is unusual to see it so vocally demonstrated in oral arguments!

All of this serves as a great example for any discussion on the role of the Supreme Court, on the role of ideology on the Court and on their role in deciding over social/moral issues. Equally, given that this is an amalgamation of four cases, this would also be great evidence in a debate of the right of the Supreme Court to rule over States’ rights.

Finally, the role of the Supreme Court, especially when contrasted against the UK Supreme Court, has long been the source of a question. Certainly, many more Americans are aware of who the Justices are and the role they have rather than UK citizens. So much so, that Ruth Bader Ginsburg has found herself as a bit of a folk hero! –