The hearing has concluded. The court has now posted the audio of both parts of today's hearing.

Question one: Does the 14th Amendment require states to issues marriage licenses to same-sex couples?

Question two: Does the constitution require states that bar same-sex marriage to recognize same-sex marriages performed in other states?


I'm lurking on SCOTUSblog's live and constantly updated post this morning...

[There was just an] interesting exchange between Justice Scalia and two of his more liberal colleagues. Scalia asked whether, if petitioners win, a minister who objects to same-sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back-and-forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings.

The audio tapes of today's arguments will be released later today. In the meantime SCOTUSblog is the place to be.

What happens if the court rules against a constitutional right to same-sex marriage? Complete chaos. Sandhya Somashekhar writes in today's WaPo:

The effect would be explosive in the 21 states where same-sex-marriage bans were struck down by federal courts. Groups for and against these unions say such a decision would set off a cascade of fresh litigation and spark dramatic new fights in state capitals, with each side jockeying to have its version of marriage enshrined in state law. Some legal experts say the old laws in those states would snap back into place, immediately shutting the door on future marriages, while others contend that would require another round of litigation. Some believe the thousands of marriages that have taken place in those states would be deemed valid, though others think the matter would need to be settled by the courts—perhaps even the Supreme Court.

The justices could specify how states should treat their ruling. But the precise fallout would probably depend on the state. In deep-red states such as Oklahoma, Utah and Kansas, officials probably would waste no time trying to put a stop to same-sex marriages. Groups may attempt to have existing marriages invalidated or may press state officials not to allow state benefits for gay couples who have wed.

Look who tweaked her logo for the big day...

The first round of arguments this morning aren't comforting for folks—like the gang over at the Guardian—who were predicting a cakewalk. Selections from the leans-antigay WSJ's live blog...

Gay rights supporters have wondered whether Chief Justice Roberts would join a potential majority pro-gay marriage decision; his early comments were not particularly encouraging in that regard.

Justice Anthony Kennedy, who is seen as a likely vote for same-sex marriage rights, said the definition of marriage as being between a man and a woman has been “with us for millennia,” and questioned whether the court should be imposing a new definition and say “we know better.”

Justice Alito asked about whether same-sex marriage was allowed in ancient Greece.

Chief Justice Roberts noted how fast things are changing in society. In Maine, he said, same-sex unions were banned in 2009 and then, in 2012, approved via a ballot vote. “If you prevail here, there will be no more debate,” he said. “People feel very differently if they have a chance to vote on it” versus having same-sex marriage imposed upon them.

But the most worrisome comment this morning came from Justice Kennedy, who everyone is counting on to provide the fifth vote...

Says Joe My God: "Uh oh." SCOTUSblog urges calm...

A lot of people are asking what Justice Kennedy's references to "millennia" mean. The short answer is that we really don't know because so far, the people blogging have only seen Justice Kennedy question one side in the case, so we don't know how he will address the other side. The normal practice is for Justices who are thinking hard about a case to ask questions of both sides (Kennedy often does, the Chief Justice too), so I wouldn't read very much into it. Obviously it's not as clear a signal as if he had said, "You are clearly right," or "You are clearly wrong," but such clarity is rare.


At the start of Tuesday’s arguments, Chief Justice John G. Roberts Jr. said that he had looked up definitions of marriage and had been unable to find one written before a dozen years ago that did not define it as between a man and a woman. “If you succeed, that definition will not be operable,” the Chief Justice said. “You are not seeking to join the institution. You are seeking to change the institution.”

Justice Ginsburg pointed out that the institution of marriage had become egalitarian—and that gays and lesbians fit into this "egalitarian" definition of marriage:

One seemingly striking moment came when Justice Ginsburg spoke of how it was recent changes to the institution of marriage that made it appropriate for gay and lesbian couples—in particular, it becoming an egalitarian institution rather than one dominated by the male partners who determined where and how the couple would live

They don't describe Kennedy as the swing vote for nothing. WSJ:

While Justice Kennedy voiced apprehension in the first part of the argument about redefining marriage after traditional definitions have prevailed for so long, in the second half of the oral argument he repeatedly questioned the legal position offered by the states against same-sex marriage.

An antigay protester disrupted the hearing today—and was dragged out of the court. Jeremy Hooper thinks that's great:

What not to do when your movement is in the midst of its biggest Supreme Court hearing ever and disproving animus is the burden for your side? Well, this: "ANTI-GAY PROTESTER DISRUPTS SCOTUS MARRIAGE HEARING: 'HOMOSEXUALITY IS AN ABOMINATION!'" It's actually appropriate that this happened. It's highly unlikely that those defending discrimination in court are going to make such an argument, but those of us who have covered the anti-equality movement full well know that abject detestation for homosexuality is what drives it at its core. It makes sense for the justices to get to see it for themselves!