The U.S. Supreme Court is set to rule soon on a challenge to Kentucky’s and three other states’ gay marriage bans. The outcome is expected to settle the national issue of gay marriage.
NPR’s Legal Affairs Correspondent Nina Totenberg has been following the issue as it moves through the court system.
"I would have to say that Justice [Robert] Kennedy, who is considered to be the crucial vote in this case, seemed dubious about the states' arguments, and yet he posed some difficult questions to those who were asking the court to strike down the ban on same-sex marriage," said Totenberg. "Specifically, he said that 'for thousands of years, marriage has been between a man and a woman and only in relatively recent times did this come up so do you really think we should jump in this question?'"
Totenberg says both sides have provided enough material to satisfy their defense of their positions, but not without their issues.
“The biggest problem for the states that were defending their bans is that their justifications for why the bans are needed are principally moral and vaguely faith-based," said Totenberg. "It’s difficult to articulate a justification. It was difficult for their lawyers to do that in the Supreme Court and difficult to do that in most of the court visits.”
Two years ago, the Supreme Court struck down provisions of the Defense of Marriage Act, or DOMA, barring federal recognition of same-sex marriages. But that ruling did not affect Kentucky as its ban was part of the state constitution.
Totenberg says advocates of the ban have changed their arguments in that time.
"At that time, advocates made the arguments that same-sex couples were not as good parents," said Totenberg. "That really did not get a good reception with the court because most of the sociological data that's been compiled over the last few years goes the other way. And plaintiffs in these cases are really upstanding citizens and very good parents.
"So this time, the idea that the states are portraying is that marriage is really for procreation, it's not for commitment. And of course, two of the leading plaintiffs in this case in Kentucky are Randy Johnson and Paul Campion who have adopted four children. That's were the rubber meets the road for the advocates for the state lawyers in this case."
But, if the court rules in favor of the states’ ban, she doesn’t think its opposition will go away.
“Well, if the court were to uphold the bans, I think it would be the end of the issue for now but it would undoubtedly resurface 10 years from now or 8 years from now, if every state in the union didn’t change its laws. If, on the other hand, the court strikes down the ban, I think it’s pretty much the end of the issue.”
Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
