In oral arguments at the Supreme Court over whether states' same-sex marriage bans are unconstitutional, Justice Anthony Kennedy — potentially the court's key swing vote in the cases — asked questions that seemed both skeptical and supportive of marriage equality.
David Ingram, a reporter with Reuters, tweeted about the justice's questions and comments:
Kennedy: "This definition has been with us for millenia, and I think it's very difficult for this court to say we know better." #SCOTUS— David Ingram (@David_Ingram) April 28, 2015
Kennedy multiple times talked about marriage being the same for "millenia." He said he "kept coming back" to that thought. #ReutersSCOTUS— David Ingram (@David_Ingram) April 28, 2015
Kennedy said gay marriage is so new that the social impact may not be fully known. #ReutersSCOTUS— David Ingram (@David_Ingram) April 28, 2015
But Tom Goldstein, publisher of SCOTUSblog, said Kennedy also made several statements that seemed supportive of marriage equality:
He said that his sense was that a principal purpose of marriage was to afford dignity to the couples, which is denied to same-sex couples.
He also said that he thought that the fact that same-sex couples raise adopted children cut strongly against the state's arguments.
That said, the balance between Justice Kennedy's comments in the first and second halves of the argument leaves things in a state of flux. You couldn't confidently predict the outcome.
He is clearly weighing two things: the definition of marriage has been the same for "millennia" versus the fact that denying marriage to same-sex couples is an affront to their dignity (and that of the children they raise).
It's hard to say whether these questions signal the direction in which Kennedy is leaning. Justices very often pose skeptical questions to litigators in court to get them to flesh out their answers.
But Kennedy's questions are particularly important, because he's widely expected to play the role of a swing vote in the Supreme Court's final decision. He was the deciding vote in the ruling that struck down the federal ban on same-sex marriage, which, going into the current cases, left LGBT advocates and court watchers confident that marriage equality would prevail at the Supreme Court. But Kennedy's mixed questions make it very hard to read where he'll ultimately rule.
Read more about the lead-up to the current Supreme Court battle over same-sex marriage: