Justice Kennedy: 'It's Very Difficult for the Court to Say, Oh, Well, We Know Better'

By Penny Starr | April 28, 2015 | 3:54pm EDT

(CNSNews.com) -- In oral arguments at the U.S. Supreme Court on Tuesday about whether the Constitution’s 14th Amendment requires states to license homosexual marriages and recognize such marriages from states where they are legal, Chief Justice John Roberts and Justice Anthony Kennedy noted that the pro-gay marriage petitioners were asking the court to decide to fundamentally change the institution of marriage.

In some of his remarks, Justice Antonin Scalia said the court ruling in favor of homosexual marriage would mean the courts, and not the American people, would have the definitive say on same-sex marriage.

U.S. Supreme Court justices (AP photo)

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 –.”

Shelly Bailes, 74, left, and her wife, Ellen Pontac, 73, both of Davis, Calif., kiss in front of the Supreme Court in Washington, Tuesday, April 28, 2015. The Supreme Court is set to hear historic arguments in cases that could make same-sex marriage the law of the land. The justices are meeting to offer the first public indication of where they stand in the dispute over whether states can continue defining marriage as the union of a man and a woman, or whether the Constitution gives gay and lesbian couples the right to marry. (AP Photo/Cliff Owen)

“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 added that the case is really about whether the American people or the courts will decide on the fate of same-sex marriage in the United States.

“Well, the issue, of course, is not whether there should be same-sex marriage, but who should decide the point,” Scalia said.

(AP File Photo)

“And you’re asking us to decide it for this society when no other society until 2001 ever had it,” Scalia said to Bonauto, noting that only 11 states have adopted same-sex marriage.

Bonauto said she counts the states that have same-sex marriage after courts decided state bans on the practice were unconstitutional.

“Well, yes, the state courts would agree with you,” Scalia said. “But once again, that’s not the people deciding it.”

“It’s the judges,” Scalia said.

This exchange took place while the court considered the first of two questions it will answer in its ruling on the case: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

The second question is: “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?”

A decision is expected by June.

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