The Supreme Court appears to be split on whether it will rule that there is a constitutional right to same-sex marriage. The court heard oral arguments on Tuesday on that question and whether states that don't have same-sex marriage would have to recognize marriages performed in states that do. Justice Anthony Kennedy, who is widely seen as a swing vote on the issue, expressed dueling concerns about changing long-standing conceptions of marriage and excluding gay couples from the institution.
Kennedy said the definition of marriage “has been with us for millennia” and that "it’s very difficult for the court to say, ‘Oh, we know better.’”
Chief Justice John Roberts echoed Kennedy, saying gay couples are seeking to "change what the institution [of marriage] is." In response to a question about advancing gay marriage on a state-by-state basis, attorney Mary Bonauto replied that “‘wait and see’ by itself has never been seen as a justification under the Fourteenth Amendment."
In 2013’s United States v. Windsor, the court struck down a prohibition on federal benefits for same-sex couples who were wed in gay-marriage states. In October 2014, the court further advanced the cause of gay marriage by refusing to hear appeals from several states fighting court orders to begin same-sex marriage. As a result, 36 states allow gay marriage.
The court's decision is expected in June.