Arguments in
Obergefell v. Hodges, the marriage equality case heard by the U.S. Supreme Court Tuesday, are done with advocates for equality seeing some strong signs for optimism and those signs point to Justice Anthony Kennedy, but not just him. Kennedy, of course, is the perennial swing vote. His
questions in the first part of oral arguments, regarding the basic question of whether states must allow same-sex marriage weren't encouraging, since he seemed obsessed with time: that marriage had been defined one way for "millennia" (which of course it hasn't) and the fact that
this has all been happening too fast.
At the same time, though, Kennedy argued that same-sex couples were seeking the same "ennoblement" and "dignity" as straight couples entering into marriage. That includes, he said raising adopted children and that denying the right to marriage is an affront to the dignity of whole families, including those children.
Kennedy was largely silent in the second part of arguments, those focusing on whether states could deny marriage rights to people married in other states. That might be encouraging, one of the SCOTUSblog contributors writes:
Kennedy's relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question—that is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.
Also somewhat surprising in the second round of questioning was Justice Antonin Scalia
asking "tough questions" of the states about "why the text of the Full Faith and Credit provision did not extend to marriages." That provision of Article 4 says "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state." For the most part, Scalia seems to have been pretty subdued for him, refraining from the kind of acerbic and offensive line of questioning he's known for.
A big unknown here is Chief Justice John Roberts, who asked tough questions of both sides and did not show his hand one way or the other. There's little indication that Roberts is leaning toward a compromise here that advocates have feared: that the court would rule that states do not have to legalize marriage but that states would have to recognize legal marriages from other states.
At least one court watcher ultimately sees Kennedy as landing on the side of full marriage equality. We'll know at the end of June.