Same-sex marriage at supreme court: key justice proves skeptical of arguments – as it happened

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Powered by Guardian.co.ukThis article titled “Same-sex marriage at supreme court: key justice proves skeptical of arguments – as it happened” was written by Alan Yuhas and Amanda Holpuch in New York, with Dan Roberts, Sabrina Siddiqui and Steven W Thrasher in Washington, for theguardian.com on Tuesday 28th April 2015 19.01 UTC

Summary

We’re going to wrap our coverage of the supreme court’s arguments over same-sex marriage – which likely hinge on the swing votes of one or two justices. The hearing suggests that the justices will either legalize gay marriage throughout the United States or compel states with bans to recognize marriages licensed out-of-state.

You can read my colleague’s story on the hearing here, or check out a summary of the nine justice’s stances below.

Justice Anthony Kennedy, the judge who swung past votes in favor of same-sex marriage, struck a skeptical and ambivalent attitude toward the case. “This definition has been with us for millennia and it’s very difficult for the the court to say ‘well, we know better,’” Kennedy said. But he also criticized the argument that same-sex marriages harm conventional marriages or lack the same “noble purpose.”

Chief justice John Roberts, cagey and disinclined to show his cards, also emerged as a possible swing vote. He told the plaintiffs “you’re not seeking to join this institution, but change what the institution is.” Roberts also asked the states, however, why marriage bans don’t amount to “a straightforward question of sexual discrimination?”

Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan pressed the defense about the possibility of “irrational” and “invidious” discrimination, and questioned its arguments about procreation. “You’re not taking away anything from heterosexual couples,” Ginsburg said.

Justices Antonin Scalia insisted that the true question was whether the states or courts have authority to define marriages: “I’m concerned about the wisdom of this court imposing through the constitution­­ a requirement of action which is unpalatable to many of our citizens for religious reasons.” But he also seemed wary of letting states with bans nullify marriages licensed in states without bans.

Justice Samuel Alito brought up ancient Greece to argue that traditional marriage has precedent even in tolerant societies, asking “but did they have same-­sex marriage in ancient Greece? … People like Plato wrote in favor of that, did he not?”

Justice Stephen Breyer, on the liberal wing of the court, pressed the plaintiffs to say why courts should decide the issue and not states, but also asked whether “a purely religious reason on the part of some people [is] sufficient” to exclude gay people from the right to marry.

Justice Clarence Thomas, perhaps the most stolidly conservative judge on the bench, said absolutely nothing, as is his wont.

• A protester interrupted the court with screams that pro-gay rights supporters would “burn in hell” and had to be pulled out by security, as same-sex marriage advocates rallied outside and religious groups protested.

My colleague Sabrina Siddiqui has filmed some video of the competing rallies outside the supreme court, almost all between religious opponents of same-sex marriage with advocates of it – it ends with a particularly heated argument between several advocates and a religious opponent.

A word of caution from a state supreme court justice: the highest judges in the land know how to argue all sides.

Texas supreme court justice Don Willett agrees with a Texas lawyer who’s pinged him on Twitter. “Try not to read too much into [questions] from SCOTUS justices,” she writes. “Never know what the motivation [behind] them is.”

Steven Thrasher, who was at the steps as the crowd files in and out of the supreme court after arguments, sends a note about the arguments:

Woman coming out is telling reporters Kagan was “grilling” anti-marriage side about if they can recognize birth certificates, why can’t they recognize marriage certificates. She also observes that all justices looked attentive, except Roberts and Thomas, who were slouched back in their seats.

Justice Samuel Alito raised the question of polygamy during arguments, asking the plaintiffs why would any state not be willing to consider that a marriage.

Alito: “Well, what if there’s no ­­ these are four people, two men and two women, it’s not, it’s not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let’s say they’re all consenting adults, highly educated. They’re all lawyers. … What would be the logic of denying them the same right?”

Mary Bonauto, the lawyer for the plaintiffs, countered by first saying that marriages are still between two people, and second by raising concerns about the Pandora’s box of divorce, custody, medical and problems that the law would have to confront in a circumstance that wasn’t just “two consenting adults who want to make that mutual commitment for as long as they shall be.”

Three members of the DC order of the Sisters of Perpetual Indulgence, a gender queer protest and street theater drag movement, have explained why they care about marriage equality to the Guardian’s Steven Thrasher.

All are married, though none of their husbands are at the court today, Steven notes: Sister Queen Isafella (left, rear) was married in 2014 in DC, after 10 years with the man who is now his husband. Senior Novice Sister Millie Terri, rear right, was married in DC in 2013 after 4 years. And Novice Sister Tiny Bubbles was married in Virginia in 2009 (ceremony) and DV (legal) in 2010 after 9 years.

Guardian DC bureau chief Dan Roberts recounts the shrill screaming of a man who burst into protesting in the middle of arguments (about 27 minutes into the audio):

‘The Bible teaches that if you support gay marriage you will burn in hell for eternity,’ he began, leaving onlookers in little doubt where he stood on the matter.

After security guards rushed to escort him, justice Scalia broke the ice by observing wryly that the incident had been “rather refreshing actually”.

The sound of shouting from the protestor who interrupted the Supreme Court could be heard echoing down the corridor for minutes afterwards as he was removed from the chamber.

But the man’s continued protests – a very rare occurrence in the highly-controlled court environment – served as a temporary distraction as lawyers began the second part of the opening questions with his voice still reverberating through the building.

Justice Kennedy’s “relative silence in the second argument may be good evidence that he intends to rule in favor of the couples on the main question,” argues Kevin Russell of ScotusBlog

That is, it suggests he will vote to require states to allow same-sex marriages in their own states, which will effectively moot the question of whether they are required to recognize the same-sex marriages performed in other states.

His colleague Eric Citron also notes Kennedy’s preoccupation not just with the conventional tradition of marriage, but with the idea that same-sex couples are denied dignity without the right to marry.

Much of the briefing and argument today was about the social meaning of excluding gays and lesbians from the institution – is it something with the purpose or effect of marking them as less, and denying their unions dignity is a way that harms them and their children. Consider: Suppose we called interracial marriage an “interracial civil union.” Would that do to avoid race discrimination? Maybe so; but it seems plausible not.

You can follow their continued deep dive through the arguments here.

Buzzfeed’s Chris Geidner makes a similar observation about Kennedy’s concern for dignity, taking note of Kennedy’s comment that Michigan’s “law banning same-sex couples from marrying ‘assumes’ that those couples can’t have the same ‘more noble purpose’ as opposite sex couples have for entering marriage.”

ACLU attorney Joshua Block also digs through the record to find something hopeful for LGBT activists who may have become worried after hearing Kennedy’s pronounced caution toward the case.

Justice Ruth Bader Ginsburg boosted the case of same-sex marriage advocates in court today with comments about how marriage itself has changed between men and woman over the centuries, much less the millennia that her peers debated.

From the transcript:

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. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him.

There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same­-sex unions wouldn’t ­­wouldn’t fit into what marriage was once.

The supreme court has now released both full audio and transcripts of the arguments this morning.

The first part of arguments is available here, on whether the same-sex marriage should be legal everywhere in the United States

The second set of arguments is here, on whether states with bans must recognize same-sex marriages licensed out-of-state.

If you prefer audio, you can find both parts of the morning’s arguments here. If you prefer video of dogs dressed as supreme court justices, then you can thank John Oliver and click here.

Updated

“Even arch-conservative Antonin Scalia questioned whether it made sense to allow states to overturn same-sex marriages carried out elsewhere,” my colleagues Dan Roberts and Sabrina Siddiqui report.

Quoting article 4 of the constitution requiring states to give “full faith and credit” to acts, records and judicial proceedings of other states, Justice Scalia was joined by Roberts, who also seemed alarmed at the prospect of patchwork of differing recognition standards.

Liberal justice Ruth Bader-Ginsburg “was particularly striking in her criticism of bans,” they continue.

Ginsburg noted that nothing was being taken away from heterosexual couples by allowing gay couples to marry. The institution of marriage, she added, has changed in recent years to become more “egalitarian.”

My colleagues Dan Roberts and Sabrina Siddiqui have sent their first take on the arguments over the first question – whether the courts should mandate legal gay marriage around the US:

The US Supreme Court appeared heading at least toward limited national recognition of gay marriages on Tuesday as justices fretted about forcing all states to allow them but were sympathetic to the argument that weddings held elsewhere should be upheld.

But despite hopes among campaigners that the nine justices were on the verge of a historic civil rights decision declaring that same-sex unions were a constitutional right, a majority of the bench expressed concerns about “redefining” marriage in states that had voted to ban the practice.

“This definition has been with us for millennia and it’s very difficult for the the court to say ‘well, we know better’,” said Justice Anthony M Kennedy, who is regarded as the potential swing voter between liberals and conservatives in the court.

“The opposite view has been the law everywhere for thousands of years among people who were not discriminating against gay people and suddenly you want nine people who are operating outside the ballot box to decide what states can do,” he added.

Chief Justice John G Roberts Jr joined in, saying, “You’re not seeking to join this institution, but change what the institution is.”

The plaintiff’s lawyer, Mary Bonauto, was helped by liberal justices Ruth Bader Ginsburg and Stephen Breyer, but they also pressed her on the question of why the courts should decide matters of marriage and not the states.

“The opposite view has been the law everywhere for thousands of years among people who were not discriminating against gay people and suddenly you want nine people who are operating outside the ballot box to decide what states can do,” Breyer said.

With respect to who should decide whether same-sex marriage should be lawful, Bonauto said the choice was not between the Court and the state. The real question, she argued, was whether it was the right of an individual to marry or the right of the government to decide for the individual.

The junior senator from New Jersey thinks the court falls to a swing justice – the prevailing read on this morning’s arguments from those who were in the courtroom.

My colleague Steven Thrasher adds that Roberta Kaplan, who argued and won the 2013 Windsor case and watched the hearing today, says “I think the justices are there. I think Justice Kennedy is there.”

He adds that she did not make a prediction about chief justice Roberts (emphasis his).

Updated

Swing justices ambivalent about nationwide same-sex marriage.

Justice Anthony Kennedy – the likely swing voter on the supreme court – appears torn between the liberal and conservative branches in deciding whether to legalize same-sex marriage across the United States.

He pressed the lawyer arguing for legal same-sex marriage on the “millennia-plus-time” definition of marriage as between a man and a woman, but also stressed his belief that marriage affords dignity to couples, and that a ban on same-sex marriage denies gay couples that dignity. He also expressed strong reservations about undermining states’ authority to make these decisions.

Kennedy was “very worried about overturning states on something that has been defined a certain way for so long,” my colleague Dan Roberts tells me after leaving the court. “I think it’s a lot closer than campaigners had hoped for.”

But chief justice John Roberts also expressed ambivalence about the issue, meaning the normally conservative justice may also have a vote in play.

The second question, however, about whether states must recognize out-of-state marriages, looked like it would fall in favor of same-sex marriage supporters.

“There was almost unanimous view that allowing states to nullifying marriages would be too far in the other direction,” Dan reports. If the court rules in the plaintiffs favor on the second question, states that ban same-sex marriages would have to recognize their legitimacy when the couples wed out of state.

Kennedy wrote the decisions in the court’s last three gay rights decisions, most notably in the 2013 case that dismantled the Defense of Marriage Act. But that decision stressed that states had authority to make decisions about marriage, a point that conservative justices stressed today.

The supreme court has released the audio of oral arguments, which you can listen to in full on its site here. We’re listening in and will summarize key moments and provide analysis as soon as possible.

It begins with Mary Bonuato arguing in favor of same-sex marriage, only to be promptly interrupted by Ruth Bader-Ginsburg who asked about how Bonuato accounts for the court’s 2013 decision that “stressed the federal government’s historic deference to states.”

Bonuato countered that “the law must respect the constitutional rights of person … and here we have a full class of people who were denied the equal right.”

Chief justice John Roberts then said he looked up definitions and they were all between a man and a woman, and justice Anthony Kennedy added: “the word that keeps coming back to me in this case is millennia plus time.

“This definition has been with us for millennia, and it’s very difficult for the court to say ‘oh well, we know better.’”

He then wondered whether enough the debate had enough time to come to a conclusion, noting other historic civil rights decisions.

Updated

A few more snippets from the hearing of the last two hours, including what may be a sign that even the conservative justices, including Samuel Alito, might be thinking about the march of history.

Almost 20 years after Congress and president Bill Clinton signed into law the Defense of Marriage Act, that law was dismantled and same-sex marriage is legal in 36 states.

Alito’s statement puts states’ rights in the foreground, rather than trying to define marriage itself.

Meanwhile USA Today’s Brad Heath tweets that Kennedy joined the court’s liberal wing in doubting that states were reasonable to ban same-sex marriage.

Outside the courthouse, my colleague Steven Thrasher has interviewed Gene Robinson, an openly gay Episcopal bishop (now retired).

Robinson linked the gay civil rights movement to the Black Lives Matter movement – “ultimately we are all after justice.”

Justice Kennedy stressed the “millennia” of marriage at length, according to the AP, which has more on the key judge’s skeptical approach to the case. Kennedy wrote the court’s three previous gay rights decisions.

Kennedy, whose vote is seen as pivotal, said marriage has been understood as one man and one woman for “millennia-plus time”. He said same-sex marriage has been debated in earnest for only about 10 years, and he wondered aloud whether scholars and the public need more time.

“It’s very difficult for the court to say ‘We know better,”’ Kennedy told Mary Bonauto, a lawyer representing same-sex couples.

Chief justice John Roberts said gay couples seeking to marry are not seeking to join the institution of marriage.

“You’re seeking to change what the institution is,” Roberts said.

Conservative justice Antonin Scalia, meanwhile, preferred the question of “who should decide the point” to whether marriage needs reconsidering. The AP reports that he “expressed concern about the court imposing a requirement on the states that ‘is unpalatable to many for religious reasons.’”

Justice Stephen Breyer asked if the nation needs more time to “wait and see” whether gay marriage is harmful to society. Bonauto responded that wait-and-see has never been considered a justification for discrimination under the Constitution.

Updated

“Strange dueling scene of pro-marriage equality and anti-equality rallies with dueling sound systems,” reports Steven Thrasher, who’s outside the courthouse.

Both are featuring black speakers right now, using the 14th amendment to make very different arguments. Both are strangely chanting about love.

Black lesbians on the pro side are talking about their wedding pictures being used in Essence magazine, and how that gave other black lesbians a way to talk about “who I am and who I love.”

“I am a Christian,” says one, “and I am super gay.”

They are also exhorting the crowd to see the links between compassion, justice, marriage equality and what’s happening up the road in Baltimore.

Updated

Key justices question ‘millennia’ of marriage

Justices Anthony Kennedy, who swung in favor of same-sex marriage in 2013 and may be a key vote in this case, repeatedly talked about marriage between a man and a woman as a “definition [that] has been with us for millennia.”

Chief justice John Roberts also pressed the attorney for the plaintiffs hard, saying “You’re seeking to change what the institution is. If you prevail here, there will be no more debate.”

Roberts and Kennedy could swing the court and are relative moderates compared to their liberal and conservative peers – they often conceal their intentions in a given case by questioning both sides sharply.

It’s too soon to judge their inclinations based on one round of questioning; Kennedy also made clear that he’s concerned whether gay people are denied dignity afforded to straight couples, and Roberts wondered about whether bans amount to sex discrimination.

There was also a “quirky historical dispute”, reports Eric Citron of ScotusBlog, when justice Samuel Alito brought up the lax attitude of ancient Greece toward homosexuality. Alito asked whether ancient societies allowed same-sex marriage, or whether historical definitions of marriage couldn’t be trusted because of longstanding biases and discrimination against gay people.

Citron says that this led to a broader debate about whether states had “irrationally” or “invidiously” discriminated against gay couples.

Updated

Christians, Jews and groups of all colors are banding together outside the courthouse – sometimes in surprising combinations, my colleague Steven Thrasher tweets.

Mary Bonauto, arguing in support of marriage equality, ended her argument with a sharp little riposte to the court’s question of whether states or courts get to decide the legality of same-sex marriage.

Tejinder Singh of SCOTUSblog has the ringer: “She responded that the choice is not between the court and the state, but instead whether the individual can decide who to marry, or whether the government will decide for him.”

You can follow Singh and his attorney colleagues get into the gritty details and glimpses of arguments over at their blog.

Updated

Back outside with the Guardian’s Steven Thrasher, who’s met the Sisters of Perpetual Indulgence and the ‘straight family’ of the Westlunds, who are out for equality writ large.

Sisters of Perpetual Indulgence supreme court gay marriage
‘The Sisters of Perpetual Indulgence’ Photograph: Steven Thrasher
The Westlund family.
The Westlund family Photograph: Steven Thrasher

Justice Antonin Scalia let fly some of his distinct humor at the protester who squirreled into the chamber, my colleague Sabrina Siddiqui tweets.

The Huffington Post’s Ryan Reilly caught the court’s security scurrying in as a protester started shouting in the chamber.

Protester ejected from court

A protester has been removed from the supreme court after a “big outburst”, reports SCOTUSblog’s Eric Citron and the Huffington Post’s Ryan Reilly.

From Citron: “A protestor has just been removed from the Courtroom – it came immediately after the petitioner’s argument. Hard to hear what he’s saying, and he’s been removed.”

Citron’s colleague Tejinder Singh says he “could hear the man continuing to shout as the guards escorted him from the courtroom and into the building. The Supreme Court building is not the best, acoustically, so it was hard to make out what he was saying, but it sounded like an anti-same-sex marriage rant.”

The court has Luddite-lite views on access and prohibits video or direct audio feed from its inner sanctum, and bars virtually all wireless access – it may take some time to learn quite just what happened in the chamber.

Updated

Mingling with the protesters and advocates at the court house, my colleague Steven Thrasher has met families, couples, religious groups for and against full marriage equality, and Americans of all stripes.

The Westlund family, from White Plains, New York, came, even though they are a “straight family” and don’t have “a stake in the game.” John and Candice Westlund said they “simply believe in equality,” and told their kids (Zoe, Haley, Riley and Marley) that they would learn more about their country by skipping a day from school and showing their support at the Supreme Court.

Marco German Domniguez
Marco German Domniguez Photograph: Steven Thrasher

Compared to past events over the years, protesters from the Westboro Baptist church are mostly considered irrelevant and people are not paying them much mind, except for LGBT affirming Christians (some identifying specifically as Baptists) who stand in front of them, trying to give a different religious spin than what Westboro is preaching.

Marcos German Dominguez, aided by his dog Sophia George, placed himself between Westboro with a sign proclaiming God’s love.

As a rally begins, the LGBT rights supporters are singing the Star Spangled Banner as Westboro tries to yell above them on their bullhorns.

A few hundred people are milling about in a scene that’s “chaotic but relatively relaxed and light” outside the court, reports writer-at-large Steven Thrasher (@thrasherxy).

The scene is chaotic but relatively relaxed and light outside the supreme court. There are a few hundred people, noticeably fewer than in 2013 when the last two marriage cases were filed. The most common signs are for the Human Rights Campaign and Westboro Baptist Church.

Cathy and Sheila Marino-Thomas
Cathy and Sheila Marino-Thomas. Photograph: Steven Thrasher

Couples, and queer people who are not couples, have come from all over the country, from members of the DC chapter of the Sisters of Perpetual Indulgence, to Cathy and Sheila Marino-Thomas, who have been together for 23 years.

Updated

The arguments in today’s case, translated by Amy Howe of SCOTUSblog. First up, the case for same-sex marriage: “the court has long made clear that marriage is a fundamental right, and they are merely seeking equal access to that right.”

But even if that’s not the case, they add, the Court’s decision in the [the 2013] case means that states can’t exclude same-sex couples from the dignity, rights, and benefits created by marriage just because they disapprove of them. Moreover, the laws that prohibit a state from recognizing same-sex marriages that were conducted legally in another state are, the plaintiffs contend, “disrespectful” of those states and their decisions to allow same-sex couples to marry.

The pro argument is bolstered by the actions of lower courts, who have over the past two years used the 2013 decision to strike down bans in five states – despite that majority opinion’s emphasis that the courts must respect state decisions. You can read her complete summary here.

The argument against same-sex marriage: “the states have traditionally defined and regulated marriage.”

And just as the Court in [the 2013 decision] determined that the Defense of Marriage Act must fall because it stood in the way of a decision by New Yorkers that same-sex couples should be treated the same as their opposite-sex counterparts, a decision by the Supreme Court for the plaintiffs would overturn a decision by the residents of these four states that marriage should be reserved for opposite-sex couples.

Because each state is its own independent entity, they insist, they don’t have to allow same-sex marriages or recognize same-sex marriages that take place outside their state just because some other states have opted to do so.

The issue is who gets to decide whether same-sex marriage should be legal in a particular state, and on this question the states come down squarely on the side of the people, rather than the courts. In their view, the same-sex marriage question “has been subject to a vigorous debate that is still ongoing”

Howe points out that more than 70 million people have voted on the “ongoing” and “vigorous debate”; 36 states have legalized gay marriage, and in Alabama the courts are battling its legal status. You can read her second summary here.

The Guardian’s Steven Thrasher and Huffington Post’s Jennifer Bendery, on the scene and seeing the contest of amateur sign-makers.

What happens if the justices rule in favor of gay marriage on one constitutional question but not another? Lyle Denniston of SCOTUSblog has your quick take in his long gloss on the case’s “decisive questions”.

The Court is examining two constitutional claims to a right to be treated equality: equal access to marriage in the first instance for unwed gay and lesbian couples (an issue in two of the cases before the Justices), and equal recognition of same-sex marriages already performed in another state (at issue in one of the marriage cases and in the two cases that deal only with recognition).

If the couples win on the first point, then equality would be mandated nationwide, and recognition would seem to lose its separate significance. It is possible that the Court, if it were to examine the recognition issue wholly apart from its obvious link to marriage access, might find it fairly easy to assure equality in recognition.

That, in effect, is what it required the federal government to do when, in the Windsor decision, it opened federal marital benefits to already married same-sex couples as a matter of constitutional equality.

On Monday, several attorneys and law professors told my colleague Amanda Holpuch that the prospects look good for at least some variation of a ruling favorable to same-sex marriage proponents.

The Harry Potter constituency has brought a sign.

Your Guardian supreme court team of the day:

• Steven Thrasher, writer-at-large for the Guardian, working the steps of the court (@thrasherxy)
• Reporter Sabrina Siddiqui (@sabrinasiddiqui) and bureau chief Dan Roberts (@robertsdan) in Washington
• And reporter Amanda Holpuch (@holpuch) with analysis and updates from New York

Updated

Presidential candidate Hillary Clinton has gotten into the spirit – but does it actually improve the logo?

Hillary Clinton logo
Hillary Clinton’s campaign logo. Photograph: Facebook

Meanwhile another presidential candidate, Republican Ted Cruz, managed to get a gay businessman in trouble with the LGBT community yesterday, about which my colleague Amanda Holpuch wrote about here.

Updated

Supreme court artist Athur Lien with a view of the court.

The Guardian’s Dan Roberts, at the court, warns that the justices won’t fully reveal how they intend to rule during today’s arguments:

Big civil rights cases like this reveal just how arcane supreme court practices remain when it comes to dealing with matters of intense public interest. Though a small number of reporters are allowed into this extra-long, 2.5-hour session, many of us will have sight of only one or two justices due to a series of pillars that obstruct the view from the press seats and may have to guess the identity of the others from the timbre of their voices.

Not even all the lawyers representing the petitioners have enough seats and some will have to leave the chamber after the first of the two questions under consideration today.

This may at least give the public a chance to gain an early, though partial, report of proceedings as a ban on all electronic devices means reporters who chose to sit through to the end will not be able to communicate at all until they leave the court.

We mustn’t forget either that it will be months before the nine justices actually tell us what they really think. Today’s oral argument can give clues if they take a strong line in questioning the lawyers, but Clarence Thomas – for one – famously never speaks at all, and chief justice John Roberts may also chose to stay relatively mum to help preserve the appearance of neutrality. In other words, treat all early reports with caution.

Updated

Dan Roberts (@robertsdan), the Guardian’s DC bureau chief, will be in the court this morning, where activists for and against legalization have amassed outside.

<p style=" margin:8px 0 0 0; padding:0 4px;"> <a href="https://instagram.com/p/2BLQx6gRcU/" style=" color:#000; font-family:Arial,sans-serif; font-size:14px; font-style:normal; font-weight:normal; line-height:17px; text-decoration:none; word-wrap:break-word;" target="_top">Gay marriage finally gets its big day in court</a></p> <p style=" color:#c9c8cd; font-family:Arial,sans-serif; font-size:14px; line-height:17px; margin-bottom:0; margin-top:8px; overflow:hidden; padding:8px 0 7px; text-align:center; text-overflow:ellipsis; white-space:nowrap;">A photo posted by Dan Roberts (@danroberts73) on <time style=" font-family:Arial,sans-serif; font-size:14px; line-height:17px;" datetime="2015-04-28T12:19:57+00:00">Apr 28, 2015 at 5:19am PDT</time></p></div></blockquote></body></html>”>

Two of the plaintiffs in today’s case have spoken with my colleague Amanda Holpuch (@holpuch), telling her “we weren’t willing to negotiate our kids’ rights.”

In the courtroom today will be April DeBoer and Jayne Rowse, a couple from Michigan whose challenge to the state’s marriage ban sits before the nation’s highest court.

“We’re hopeful and we’re optimistic, and I think we’re a little bit nervous and excited,” said DeBoer. “There’s a little bit of an intimidation factor of walking in to the supreme court and to see those nine justices sitting there.”

The couple was moved to challenge their home state’s laws after nearly being involved in a dangerous car accident. It left the couple wondering about what would happen to their children if one of them were to die, because they can’t both adopt each of their children.

“We weren’t willing to negotiate our kids’ rights, so we decided to challenge the marriage ban in Michigan,” said Rowse.

Their four children, aged two to six, are staying with their grandmother while their mothers face the justices and possible history in DC.

DeBoer said their kids are too young to fully understand what is going on but she hopes that someday they understand that she and Rowse did this for their protection. For now, the kids are anxiously waiting for their mothers to be allowed to marry.

“They get excited about the possibility of dressing up to go to a party where ma and mommy can get married,” said DeBoer. “And they’re hoping that we have clowns, balloons and lots of cake.”

Updated

Before the supreme court struck down part of the Defense of Marriage Act, 19 states and the District of Columbia had legalized same-sex marriage. The Guardian’s US interactive team gifs how legalization has spread across the US to at least 36 states today.

Updated

Good morning, and welcome to our live coverage of the supreme court arguments over same-sex marriage in the United States, a hearing that could reveal whether the justices intend to make same-sex marriage legal in all 50 states and secure the right to marry for couples around the country.

With protesters and pro-gay rights activists outside the highest hall of justice, the case of Obergefell v Hodges will pose two questions to the court: whether states must allow same-sex marriages, and whether states must recognize same-sex marriage licenses from another state.

Arguments for the first question begin at 10am ET, and will be followed by a brief break about 90 minutes later, during which we may get our first inkling of the justices’ thoughts. Then the court will spend 60 minutes on the second question, after which Guardian DC bureau chief Dan Roberts, reporter Amanda Holpuch and I will parse the arguments with help from experts.

Thirty-seven states and Washington DC have legalized same-sex marriage, most since the supreme court struck down a key provision of the Defense of Marriage Act in 2013. But that did not settle a key question: it remains unclear whether states or the federal government have authority in determining whether same-sex couples have a basic legal right to wed.

A record 61% of Americans support gay marriage. Many lawyers expect a victory for gay rights – but are not sure how big it will be, or on what grounds the justices will rule.

Updated

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