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Justice Kennedy may swing the Supreme Court to back marriage equality with this argument

The Supreme Court, covered by an LGBT flag.
The Supreme Court, covered by an LGBT flag.
Mladen Antonov/AFP via Getty Images

On Tuesday, Justice Anthony Kennedy made an argument that could lead the Supreme Court to strike down same-sex marriage bans across the country.

The argument came during oral hearings before the Supreme Court — and to understand its importance, you need to know what the two sides are actually arguing. Proponents of marriage equality hold that states' same-sex marriage bans are discriminatory and should be ruled unconstitutional under the 14th Amendment, which requires that states apply all laws equally to all people without violating their fundamental rights.

Opponents of same-sex marriage don't dispute that the marriage bans deliberately exclude gay and lesbian couples. Instead, they argue that the state has a compelling interest to exclude such couples. That interest? Kids.

The conservative Family Research Council, for example, argued in an amicus brief that keeping marriage between a man and a woman allows states to "channel the potential procreative sexual activity of opposite-sex couples into stable relationships in which the children so procreated may be raised by their biological mothers and fathers."

For the most part, lower courts haven't bought the anti-same-sex marriage side's argument. Seventh Circuit Court of Appeals Judge Richard Posner, a Republican appointee, wrote in his court's majority opinion, in a decision that struck down marriage bans in Wisconsin and Indiana:

The argument that the states press hardest in defense of their prohibition of same-sex marriage is that the only reason government encourages marriage is to induce heterosexuals to marry so that there will be fewer "accidental births," which when they occur outside of marriage often lead to abandonment of the child to the mother (unaided by the father) or to foster care. Overlooked by this argument is that many of those abandoned children are adopted by homosexual couples, and those children would be better off both emotionally and economically if their adoptive parents were married.

In oral arguments on Tuesday, Kennedy echoed Posner on this point during an exchange with John Bursch, the attorney arguing against marriage equality.

"I want you to think about two couples that are identically situated," Bursch said. "They've been married for five years, and they each have a 3-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together."

Bursch added, "A reasonable voter, which is what we're talking about here, could believe that there would be a different outcome if those two marriages were influenced by those different belief systems."

Kennedy's response was sharp: "But that assumes that same-sex couples could not have the more noble purpose, and that's the whole point. Same-sex couples say, 'Of course we understand the nobility and the sacredness of the 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.'"

Kennedy later added, "Under your view, it would be very difficult for same-sex couples to adopt some of these children. I think the argument cuts quite against you."

Kennedy is essentially saying that the state of Michigan, which doesn't allow same-sex couples to jointly adopt children, is making not just gay and lesbian couples' lives more difficult, but their children's lives, as well.

This argument is important, because it mirrors almost exactly what Kennedy said in the majority opinion that ended the federal same-sex marriage ban. The federal ban "demeans the couple, whose moral and sexual choices the Constitution protects … and whose relationship the State has sought to dignify," Kennedy wrote. "And it humiliates tens of thousands of children now being raised by same-sex couples."

This is, then, one of the arguments that convinced a majority of the Supreme Court to strike down the federal ban. And if Kennedy applies it to state bans, it could give him reason to strike them down, too.

Kennedy, of course, didn't fully tip his hand in oral arguments. He seemed skeptical of expanding same-sex marriage rights when questioning Mary Bonauto, the attorney who was arguing in court in favor of marriage equality. Kennedy suggested, for instance, that he was cautious about changing the definition of marriage. "This definition has been with us for millennia," he said. "And it's very difficult for the court to say, 'Oh, well, we know better.'"

But overall, some supporters of marriage equality and analysts were left confident by Kennedy's questioning.

Read more about the history and lead-up to the Supreme Court's oral arguments on same-sex marriage:

Watch: How marriage equality swept the US