Guest post by Daniel Bennett
This week’s oral arguments in Obergefell v. Hodges barely mentioned religion. In fact, the only person to give a religious argument against same-sex marriage was a protestor who interrupted the proceedings.
After the attorney for Obergefell—a gay man suing Ohio for recognition of his out-of-state marriage—finished her argument, someone in the audience began shouting.
“The Bible teaches that if you support gay marriage, then you will burn in hell!” the protester yelled. He referred to homosexuality as an “abomination,” and warned that “the judgment of God will be upon this nation” if the Court recognizes a right to same-sex marriage. He continued to yell as security removed him from the courtroom.
The whole interruption lasted less than 20 seconds. After Chief Justice Roberts asked if the justices and the attorneys were prepared to continue, Justice Scalia quipped, “It was rather refreshing, actually.”
Those twenty seconds marked religion’s most prominent role in Tuesday’s arguments.
In searching the transcript of the arguments—which spanned two-and-a-half hours, more than twice the amount of time allotted for a typical case—few references to religion can be found. And most of these come from the justices through questions to the attorneys.
For example, Justice Breyer was not convinced religious objections are enough for states to ban gay marriage: “There’s no question about [religious objectors’] sincerity, but is a purely religious reason on the part of some people sufficient?”
Breyer later added, “[Our analysis] is not going to get into all these questions balancing free religion rights versus gay rights and so forth. We’d avoid that in this case.”
And Justice Scalia did worry about the wisdom of “imposing through the Constitution – a requirement of action which is unpalatable to many of our citizens for religious reasons.”
The importance of tradition, though, was clear for some justices. Justice Kennedy’s statement epitomizes this: “This definition [of marriage] has been with us for millennia. And it’s very difficult for the Court to say, oh, well, we know better.”
Likewise, Justice Scalia worried about extending same-sex marriage rights since no society prior to the Netherlands in 2001 had done so: “You’re asking us to decide it for this society when no other society until 2001 had ever had it.”
As has been the norm in controversial cases, this case will come down to Justice Kennedy. The perpetual swing justice could take two routes: he could return to the reasoning he announced in Lawrence v. Texas, where he spoke of individual liberty for same-sex couples and denied that moral disapproval is enough to criminalize their behavior.
Conversely, he could follow elements of his opinion in U.S. v. Windsor, where he spoke of the power of states in defining marriage for themselves as a principal of federalism. If he does this, it would be hard for him to justify the Court striking down state bans on gay marriage.
Ultimately, I believe Kennedy’s rationale from Lawrence will win out, and lead to a 5-4 decision striking down bans on gay marriage. But don’t be surprised if Chief Justice Roberts joins the majority to make it 6-3: with the outcome decided, Roberts may view this case as legacy-defining, and choose to be on the winning side for history’s sake.
But whatever the outcome, don’t expect religious reasoning to play a starring role — unless the justice permits that protester to write a dissenting opinion.
Daniel Bennett, PhD, researches the conservative legal movement. He is an assistant professor of political science at Eastern Kentucky University. You can follow him on twitter at @BennettDaniel.