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Supreme Court weighs historic same-sex marriage question

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Oral arguments before the U.S. Supreme Court on potential nationwide legalization of same-sex marriage yielded limited insight into how the high court might rule on the issue.

Later this year, the court will determine whether the 14th Amendment to the U.S. Constitution requires states to issue marriage licenses to same-sex couples and recognize the validity other state's same-sex marriages.

On Tuesday, the court heard oral arguments in James Obergefell et al. v. Richard Hodges, one of four cases consolidated before the court challenging anti-gay marriage laws in Michigan, Ohio, Kentucky and Tennessee.

Justice Anthony Kennedy — viewed by many to be the deciding vote — was equally critical of arguments in favor of striking down state laws that prohibit gay and lesbian couples from legally marrying and arguments in favor of permitting states defining marriage as they see fit.

“(The traditional) definition of marriage has been with us for a millennia,” Justice Kennedy said during his questioning of Mary Bonauto, the Portland, Maine-based civil rights project director for the nonprofit legal aid group Gay & Lesbian Advocates & Defenders, who argued for more than a dozen same-sex couples seeking equal marriage rights.

“It's very difficult for the court to say, 'Oh, well, we know better,' ” Justice Kennedy said.

Ms. Bonauto told the justices that the central question is “not about the court vs. the states” in defining marriage. “It's about the individual making the choice to marry and with whom to marry, or the government.”

Even-handed skepticism

Justice Kennedy was similarly skeptical of arguments on behalf of the state of Michigan, which has a constitutional amendment banning same-sex marriage, rejecting the premise that legalizing same-sex marriage would prove harmful to opposite-sex couples and their children.

“That assumes that same-sex couples could have the more noble purpose (of child-rearing), and that's the whole point,” Justice Kennedy said. “Same-sex couples say, 'Of course, we understand the nobility and the sacredness of marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.' ”

In response, Michigan Special Assistant Attorney General John Bursch said the state's point is that “when you change something as fundamental as the marriage definition, the dictionary definition that has existed for millennia, and you apply that over generations, those changes matter.”

In November, a divided three-judge panel of the 6th U.S. Circuit Court of Appeals ruled in favor of states' authority to deny marriage rights and benefits for gay and lesbian couples.

The ruling was the first by a federal appeals court to uphold statewide gay marriage prohibitions.

Prior to that ruling, four other federal appeals courts and more than two dozen federal judges struck down state laws excluding same-sex couples from spousal rights, protections and benefits — including eligibility rights and privileges under state tax codes, insurance regulations and health care rules.