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Supreme Court appears split on gay marriage

Hundreds of proponents and opponents of same-sex marriage made their views known outside the Supreme Court Tuesday. A ruling from the justices is expected in June.Olivier Douliery/Getty Images

WASHINGTON — More than a decade after Massachusetts legalized same-sex marriage, the Supreme Court appeared divided Tuesday on whether all states must follow.

Justices’ comments, from the role of procreation to equal rights and the tradition of marriage,fell largely along ideological lines. But Justice Anthony Kennedy, whom many legal experts consider the deciding vote, pushed hard at both sides — with no clear indication which one he will support.

The traditional definition of marriage “has been with us for millennia,” he said. And it’s “very difficult for the court to say, ‘Oh well, we know better.’ ” But Kennedy also expressed concern about excluding same-sex couples from the ennoblement and dignity of marriage.


Hundreds chanted outside as justices weighed an issue that could cement a cultural shift and finally determine whether gay couples have a constitutional right to marry. The arguments, some of the most significant to reach the Supreme Court in years, pit states’ rights against individual freedoms.

The court’s ruling, expected this June, could make same-sex unions legal nationwide.

While same-sex couples can legally marry in 36 states and the District of Columbia, a federal Appeals Court upheld bans last year in Ohio, Michigan, Tennessee, and Kentucky. Lawyers for gay and lesbian couples in those four states argued Tuesday they deserve equal protection under the law like any other married couple. Representatives for the states countered that such decisions were best left to voters.

Justices faced two questions: whether states must allow gay marriage and, if not, whether they need to recognize same-sex couples married in other states.

“It’s not about the court versus the states, said Mary Bonauto, who represented the gay couples Tuesday, as she had in the groundbreaking 2003 Massachusetts case. “It’s about the individual making the choice to marry and with whom to marry, or the government.”


To prevent the right of same-sex couples to marry, she said in an unwavering tone, is to give them the “stain of unworthiness.”

Bonauto’s two daughters, who live in Maine and are children of a same-sex marriage, sat in the packed chamber during the 2½-hour session and watched their mother speak.

Chief Justice John G. Roberts Jr. pressed Bonauto on the definition of marriage, saying he found references only in the last dozen years to anything but a union between a man and a woman.

“You are not seeking to join the institution,” he said. “You are seeking to change the institution.”

Justice Antonin Scalia also focused on a history of tradition and the dangers of eliminating state discretion.

The issue, he said, “is not whether there should be same-sex marriage, but who should decide the point.”

Just as Bonauto concluded her arguments in the somber court room, a protester ruptured the silence. He called same-sex marriage an “abomination of God” and warned that gay people would “burn in hell for eternity.” His screams echoed even after security yanked him outside the courtroom.

Solicitor General Donald B. Verrilli Jr., who then stood up and spoke for same-sex couples on behalf of the Obama administration, tied arguments against gay unions to those once made about interracial marriage.

“I don’t know why we’d want to repeat that,” he said.

Several of the more liberal justices, including Justice Sonia Sotomayor, demanded opponents of gay marriage to explain why expanding it would hurt heterosexual unions.


John Bursch, who represented the states, argued more children could be born out of wedlock if marriage and child-rearing are no longer so closely connected.

“We want to encourage children to be bonded to their biological mother and father,” he said.

The questions explored Tuesday went unanswered in 2013, when justices ruled the federal government must recognize same-sex marriages in places that allow such unions. Kennedy wrote the majority opinion for that case, as he has in two others leading up to it.

This final sweeping, culmination comes as the cultural mood over same-sex marriage has shifted. More than 60 percent of Americans support gay unions, according to a poll this month from ABC News and the Washington Post. When Bonauto won the Massachusetts case, more than 50 percent of Americans thought same-sex marriage would undermine traditional families.

The arguments follow a nationwide uproar in recent weeks over some states’ so-called religious freedom laws. Push back against gay rights in Arkansas and Indiana forced lawmakers to amend new laws, which backers contend protect personal convictions but opponents warned amount to gay discrimination.

A ruling against the couples would create a raft of litigation and uncertainty, especially in the 22 states where federal courts have struck down gay marriage bans. The Supreme Court last year refused to take up the issue, essentially allowing same-sex marriages to proceed across the country. Justices agreed to hear the agruments because a split within the court system occurred with the federal appeals courts’ decision to uphold the ban.


The line outside the Supreme Court started to form this weekend as spectators vied for a prized seat in the marble chamber. Justices, in a sign of the arguments’ significance, allotted additional time and promised to make audio of the proceedings available that afternoon.

The chamber filled with government figures eager to watch the makings of history, including Representative Joseph Kennedy III of Brookline, Massachusetts Attorney General Maura Healey, and former Massachusetts Supreme Judicial Court chief justice Margaret Marshall.

“It’s great day for civil rights, a great day for equality to have this argument,” Healey said, flanked by the Supreme Court and Capitol. Behind her, supporters and opponents swarmed the sidewalk. People waved rainbow flags and carried posters that advocated love for all. One sign read, “Homo sex is a sin.”

Kennedy, who managed to grab a coveted seat inside the chamber, called Tuesday “an amazing morning.”

He wouldn’t hazard a guess as to the justices’ thinking, but said he didn’t hear a compelling argument as to why they should rule against the expansion of same-sex marriage.

“If you believe that our country and Constitution are about protecting fundamental freedoms,” he said, “it’s hard to come up with something more fundamental than to be able to marry the person you love.”

Listen to the oral arguments below:

Jessica Meyers can be reached at jessica.meyers@globe.com. Follow her on Twitter @jessicameyers.