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Wait for ruling puts focus on Kennedy

WASHINGTON (BP) — The wait for what could be a legal transformation of the institution of marriage by the U.S. Supreme Court began at 12:29 p.m. EDT Tuesday (April 28) when oral arguments ended in a case concerning gay marriage.

Oral arguments seemed to indicate the case will end with a closely decided opinion on whether the high court or the states may decide if same-sex marriage should be legalized. In the nearly two and a half hours of arguments, the justices jousted with five lawyers about such issues as changing the ancient meaning of marriage, bestowing dignity on same-sex couples and protecting religious liberty.

The justices, who are expected to issue a ruling in late June or early July, have at least three options. They could: (1) Legalize same-sex marriage throughout the country; (2) enable states to maintain their authority to define marriage as only a heterosexual union; or (3) require states to recognize gay marriages from other states without prohibiting them from licensing only male-female marriages. Potentially, the justices also could rule in such a way as to deliver a wider victory for the rights of gays and lesbians.

Advocates for biblical, traditional marriage called Wednesday (April 29) for continued prayer for the high court and for preparation for an unfavorable decision.

“There were some good questions asked at the court yesterday, ones that I hope the justices will take into account, such as why the court should attempt to change an institution that has been understood a certain way for millennia,” said Russell Moore, president of Southern Baptists’ Ethics & Religious Liberty Commission.

“As we continue to pray for this case prior to the decision, let’s remember, regardless of whether our land’s highest court recognizes the unchangeable or not, the church must hold steadfast and learn to engage a culture with the Gospel in which we cannot assume people share our understanding of marriage,” Moore said in a written statement for Baptist Press.

Jordan Lorence, senior counsel for Alliance Defending Freedom, told BP, “I am urging people to pray. I think we could see the Supreme Court go the wrong way on a 5-4 vote. But it’s not over ’til it’s over.

“I think it’s going to be a 5-4 vote, with [Associate Justice Anthony] Kennedy deciding whether to impose same-sex marriage on the whole nation or not,” Lorence said.

Based on the arguments, many observers predicted the justices will divide along ideological lines: The more conservative justices — John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito — in support of the states’ authority to define marriage; the more liberal justices — Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan — in support of a constitutional right to gay marriage. Kennedy, meanwhile, again appears to be the swing vote, but past opinions seem to indicate he will come down on the side of same-sex couples.

In the case, the high court is considering two questions: (1) Does the 14th Amendment to the U.S. Constitution require a state “to license a marriage between two people of the same sex?” and (2) does the 14th 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?”

In the opening minutes of oral arguments, Kennedy was one of five justices who posed questions to gay rights lawyer Mary Bonauto about changing the definition of marriage after its long history as only a union of a man and a woman.

“Millennia” is the word he thinks of when he considers this case, Kennedy said. “I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it — it’s very difficult for the court to say, ‘Oh, well, we — we know better.'”

Yet, Kennedy said there has been “time for the scholars and the commentators and — and the bar and the public to — to engage” regarding same-sex marriage, according to the court’s transcript.

Kennedy also expressed concern about the dignity of same-sex couples in addressing former Michigan Solicitor General John Bursch, who represented the states with traditional marriage laws.

“Same-sex couples say, ‘Of course, we understand the nobility and the sacredness of [marriage],'” Kennedy said. “It’s dignity-bestowing, and these parties say they want to have that — that same ennoblement.”

Lorence, who was in the courtroom for the arguments, said the denial of dignity argument seems persuasive to Kennedy. He told BP, “Is the Justice Kennedy who’s concerned about changing the definition of something that’s been there for a millennia — is that thought going to prevail in Justice Kennedy’s mind or ‘We have to stop dignity harms?'”

Bursch disagreed with Kennedy, saying, “The marriage institution did not develop to deny dignity or to give second-class status to anyone. It developed to serve purposes that, by their nature, arise from biology,” linking children with their fathers and mothers.

Bonauto, longtime director of the Civil Rights Project at Gay and Lesbian Advocates and Defenders, opened the arguments by telling the justices, “The abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status. And here we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.”

Roberts questioned her assertion, saying, “You’re not seeking to join the institution; you’re seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship, and you want to introduce into it a same-sex relationship.”

Roberts also expressed misgivings about the Supreme Court making an across-the-board decision on gay marriage. “If you prevail here, there will be no more debate,” he told Bonauto. “People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by — by the courts.”

U.S. Solicitor General Donald Verrilli, arguing on behalf of same-sex marriage, said of leaving the decision to the states, “It seems much more likely to me that the outcome that we’re going to end up with is something that will approximate the nation as a house divided that we had with de jure racial segregation.”

Some conservative justices raised religious liberty questions, though the issue was not the focus of the oral arguments.

Alito asked Verrilli about institutions that refuse to permit gay marriage, citing a 1983 decision in which the Supreme Court upheld the Internal Revenue Service’s revocation of a tax exemption for Bob Jones University, a fundamentalist Christian school in Greenville, S.C.

The court “held that a college was not entitled to tax-exempt status if it opposed interracial marriage or interracial dating,” Alito said. “So would the same apply to a university or a college if it opposed same-sex marriage?”

Verrilli responded, “You know, I — I don’t think I can answer that question without knowing more specifics, but it’s certainly going to be an issue. I — I don’t deny that. I don’t deny that, Justice Alito. It is — it is going to be an issue.”

Verrilli’s reply “was the most ominous thing that was said,” Lorence said. Unlike the Bob Jones decision, such an action regarding institutions that oppose same-sex marriage would have widespread consequences.

“You have the wrong doctrinal stance on marriage,” Lorence said, “that means all the Southern Baptist congregations, all the Roman Catholic archdioceses, maybe the Mormons, maybe orthodox Jewish congregations, the Orthodox churches — we’re talking about huge swaths of the religious community … — that would suddenly lose their tax exemptions.”

The result would be, he said, churches would have to pay income tax on offerings and members would not receive charitable deductions for their gifts.

“I wish that it weren’t the case,” Lorence said, “but it probably would be — the reality would be that people would give less because they couldn’t get a charitable contribution deduction on their income tax. And the churches would have to pay income tax on the income and property taxes on the church facilities and property that wouldn’t be exempt. … Every church would not be annihilated, but it would definitely hamper immensely their ability to function.”

The arguments took place at a time when same-sex marriage is legal in 37 states and the District of Columbia. The state total nearly triples the 13 states where it was legal in mid-2013. Court rulings have produced legal gay marriage in more than two-thirds of those states.

The arguments came in a case, Obergefell v. Hodges, from the Sixth Circuit Court of Appeals. In a 2-1 decision in November, it became the first federal appellate court to rule states have the authority to define marriage as only between a man and a woman. Five other appeals courts have invalidated state laws that prohibited gay marriage.

The opinion by the Sixth Circuit Court, based in Cincinnati, took place in challenges to laws in Kentucky, Michigan, Ohio and Tennessee — states where voters approved constitutional amendments between 2004 and 2006 that limit marriage to a man and a woman.

Courts have overwhelmingly issued opinions in favor of gay marriage since the Supreme Court –- in an opinion written by Kennedy — struck down a section of the federal Defense of Marriage Act (DOMA) in June 2013, saying it violated “equal protection” under the Constitution by refusing to recognize same-sex marriages. Though the high court refused to say states could not limit marriage to heterosexual couples, most courts have used the decision as a basis for striking down state laws that define marriage as only between a man and a woman.

Hundreds of people gathered April 28 on the sidewalk in front of the Supreme Court building to voice their support for or against same-sex marriage. About 40 minutes into the arguments, a spectator in the courtroom began shouting against same-sex marriage and was taken out.