It is impossible to say with certainty, but there are glimmers of common sense in Supreme Court questions.
It is pretty much impossible to predict Supreme Court decisions. But no matter how they decide the issue, some Supreme Court justices have shown evidence of really grappling with the issue. CNS News reports, “Justice Kennedy: ‘It’s Very Difficult for the Court to Say, Oh, Well, We Know Better’”
Attorney Mary Bonauto, who argued for the gay couples seeking to marry or have their marriages recognized in states that do not allow the practice — Kentucky, Michigan, Ohio, and Tennessee — in Obergefell v. Hodges, said that those state laws mean “a whole class of people are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”
Justice Roberts said, “You say join in the institution [of marriage]. The argument on the other side is that they’re seeking to redefine the institution.”
“Every definition that I looked up prior to about a dozen years ago defined marriage as unity between a man and a woman, as husband and wife,” Roberts said. “Obviously, if you succeed, that core definition will no longer be operable.”
Bonauto said, “I hope not, your honor, because what we’re talking about here is a class of people who by state laws [are] excluded from being able to participate in this institution. And if your honor’s question is about does this really draw a sexually orientation line –.”
“No,” Roberts said. “My question is, you’re not seeking to join the institution [of marriage]; you’re seeking to change what the institution is.”
“A fundamental core of the institution is the opposite sex relationship and you want to introduce into it a same-sex relationship,” Roberts said.
Bonauto said the 14th Amendment “provides enduring guarantees,” including giving homosexuals the “liberty” to marry.
Justice Anthony Kennedy interrupted, saying that the institution of marriage being defined as the union of a man and a woman has been around for “millennia.”
“This definition has been with us for millennia,” Kennedy said. “And it’s … it’s very difficult for the court to say, oh, well, we — we know better.”
Justice Scalia also pointed out that the issue wasn’t so much about whether there should be same-sex marriage, but rather about who gets to decide the issue. Should the American people decide what they believe about marriage, or should courts impose an answer on the populace?