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oral argument- Obergefell vs. Hodges

My question is that you don't want to enter the system; you want to change what the institution is. The institution's underlying heart is the opposite-sex relationship, and you intend to bring a same-sex relationship into it.
You get two points for that, Your Honor. In terms of the constitutional right to marriage as a central male-female institution, I agree that when we look at the Fourteenth Amendment, we know that it provides enduring guarantees in that what we once viewed as the role of women, or even the role of gay people is something that has changed in our society.

Samuel A. Alito, Jr.:You argue in your -- you argue in your brief that the primary purpose of the Michigan law limiting marriage to a man and a woman was to demean gay people; is that correct?

Mary L. Bonauto: The Michigan -- the Michigan statute and amendment certainly went out of their way to say that gay people were in some sense antithetical to the good of society.

Mary L. Bonauto: Even if you think about something 100 years ago, gay people were not worthy of the concern of the government and the -- and -- and moral judgments about –

Samuel A. Alito, Jr.: Well, how do you account for the fact that, as far as I'm aware, until the end of the 20th century, there never was a nation or a culture that recognized marriage between two people of the same sex?

Mary L. Bonauto: I don't know what other societies assumed, but I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded. And I do believe –

Ruth Bader Ginsburg: But you wouldn't be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn't possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship.

Antonin Scalia: For millennia, not -- not a single other society until the Netherlands in 2001, and you're telling me they were all -- I don't know what.

Mary L. Bonauto: No. What I'm saying is setting -- taking that tradition as it is, one still needs -- the Court still needs a reason to maintain that when it has the effect --

John Bursch: Respondents are really echoing the questions that -- that Justice Breyer was asking. This case isn't about how to define marriage. It's about who gets to decide that question. Is it the people acting through the democratic process, or is it the Federal courts? And we're asking you to afrm every individual's fundamental liberty interest in deciding the meaning of marriage.

Sonia Sotomayor: I'm sorry. Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry.

Stephen G. Breyer: Good.

John Bursch: Our answer number one is that 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. Now, imagine a world today where we had no marriage at all.

John Bursch: And as a society, we can agree that that's important, but the State doesn't have any interest in that. If we're trying to solve that social problem I just described, where there's no marriage, we wouldn't solve it by saying, well, let's have people identify who they are emotionally committed to and recognize those relationships.

John Bursch: If we're trying to solve that social problem I just described, where there's no marriage, we wouldn't solve it by saying, well, let's have people identify who they are emotionally committed to and recognize those relationships.

Elena Kagan: Obviously, same-sex partners cannot procreate themselves. But is there -- in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in regulating procreation through marriage?

John J. Bursch: We are saying that, Your Honor. Now, obviously, under a rational basis, that's not a question that you need to decide, but -- but even leaving that aside --

Ruth Bader Ginsburg: How could that -- how could that be, because all of the incentives, all of the benefits that marriage afords would still be available. So you're not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.

The petitioners and the respondents argue about gay and same sex marriage. According to the petitioners, it is important to give people the right to marry whomever they wish to, regardless of sex. The best argument made by the petitioners is the resulting discrimination of those aiming at having same-sex marriage. The couples from different states including Michigan, Ohio, Tennessee, and Kentucky challenged the constitution’s provision of prohibiting the legalization of same-sex marriage. Bonauto Mary claims that stereotype is the reason behind the State’s denial of same se marriage. “I don't know what other societies assumed, but I do believe that times can blind and it takes time to see stereotypes and to see the common humanity of people who had once been ignored or excluded. And I do believe–” By arguing that the state hindered the rights of citizens from engaging in free marriages, the court believed that the people have a right to marry those who are their choices.

The respondents, on the other hand, argued that the state has the right to stop gay marriage. First, they reasoned that if all marriages were to be of same sex, then there would be no recreation. Elena Kagan argues that, “Obviously, same-sex partners cannot procreate themselves. But is there -- in addition to that, are you saying that recognizing same-sex marriage will impinge upon that State interest, will harm that State interest in regulating procreation through marriage?” to her, it is not possible for people to recreate if the State would opt for gay marriages. John Bursch also argued that only marriages of opposite sex are able to give children the best care they need. He states, “Justice Sotomayor, there's all kinds of societal pressures that are already delinking that reason that the State, again, is for marriage, keeping kids and their biological moms and dads together whenever possible.”

To further support the need to ban same-sex marriages, the respondents argue that there is need for children to remain with their biological parents who can offer better care. Bursch states, “I mean, I think we can all agree that, in general, that we want kids to stay bound to their biological mother and father whenever possible. That's the whole definition. And what I hear are lots of other…” In reviewing both sides, I would consider the petitioners to have the best argument. Since the Fourteenth Amendment and the Due Process Clause guarantees the right of every individual to marry whoever they prefer; and as such, same-sex marriage should be permitted and protected by the state.

August 09, 2021

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