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Interview: Nina Totenberg on Same-Sex Marriage

Nina Totenberg
Steve Barrett

NPR Legal Affairs Correspondent Nina Totenberg has provided award-winning coverage of the Supreme Court for public radio since 1975. We sat down with Totenberg for a preview of the same-sex marriage decision currently looming in the ongoing Supreme Court session.

Alex AuBuchon: Ms. Totenberg, I want to jump straight into the same-sex marriage case which obviously everyone in Alabama is following extremely closely. I’d heard a report that the oral arguments were really busy and particularly contentious and I wanted to ask if you noticed anything unusual about those arguments.

Nina Totenberg: Actually, no. I didn’t think it was particularly contentious. It was a very long argument because there was more than one question at issue, so it was a two and a half hour argument. It was not particularly different from your normally important case, or even a not that important case.

AA: What did you think about some of the justices’ lines of questioning? Do you think that revealed anything about some of the particular justices’ leaning on this issue and what we may be able to expect?

NT: Most of the members of the court – not all, by any means – but most of the members of the court are on record about their views on this, to one extent or another.

So you know, for example, that Justice Scalia does not think there’s a constitutional right protecting gay marriage, or anything else particularly gay, in the Constitution. He thinks it’s perfectly fine for a state to pass laws that protect those rights, or the federal government, but that it’s not guaranteed in the Constitution.

And you know, conversely, that Justice Kennedy thinks there are rights for gay people in the Constitution. And you know the same thing for Justices Ginsburg and Kagan and Sotomayor and Breyer.

What we don’t really know is how far they’re willing to go, those who haven’t decided the actual marriage question. And we don’t really know the answer to that, for sure. We don’t know it with Justice Kennedy. We don’t know it with Chief Justice Roberts, who said almost nothing during the argument in that case. And so we’re left to read the tea leaves.

Now, you can surmise where the court’s going on this, because they’ve let so many lower court rulings go into effect that made same-sex marriage legal. And there are now 37 states, and the majority of those are through court rulings. So you can make some surmises on that, but you can’t forecast what the court is going to do.

AA: There were some motions filed in this case – and I think one of those motions was from a group in Alabama – asking – or demanding, rather – Justice Ginsburg and Justice Kagan to recuse from the case. And I was wondering what you thought about those motions.

NT: You know, those have been filed in this case against Justice Ginsburg and Justice Kagan, and in other cases, for example, against Justice Scalia.

But most of the ethics experts who we go to to talk about this stuff say that just because you perform a same-sex marriage – Justice O’Connor performed a same-sex marriage years and years ago – that still doesn’t tell you how they’re going to rule. Not for certain.

There’s nothing you know by the fact that Justice Ginsburg or Justice Kagan or some other members of the court who may not have gotten so much publicity may have performed same-sex marriage in places where they’re legal. That doesn’t tell you how they feel about the Constitutional right to same-sex marriage. You might be able to infer that. But it doesn’t tell you anything more than what you know from what they’ve written generally on the subject of gay rights, and I suppose you could make the same inference from what Justice Scalia, for example, has written.

AA: Assuming that same-sex marriage does, in fact, pass, do you think there will be any friction anywhere in implementing this decision, in any states in particular?

NT: Well, certainly in Alabama. I don’t know what Chief Justice Moore is going to do. As of now, these marriages are not being performed in Alabama even though a federal district judge ruled that they’re legal in the state of Alabama. She stayed her ruling, presumably waiting for the Supreme Court to rule. Once the Supreme Court rules, then there conceivably could be a clash between federal and state courts.

You know, you don’t know how fights are going to unfold in a state. They may or may not. Sometimes you think there’s going to be a big fight and it sort of all crumbles to nothing. Other times you don’t expect a big fight, and there is one in a place you hadn’t anticipated.

AA: Ms. Totenberg, is there anything else you’d like to add about the current session?

NT: It’s really interesting. This is the most fun and harrowing time of year for those of us who cover the court, and probably for the justices themselves. There are, I think, 20 or 21 cases left, and probably two and a half more weeks of the court term. So these folks are going to be working pretty hard, answering each other’s dissents, majority, etc. The lot of written material goes back and forth, and when they’re done, then they dump it all on us and then we are frantic. So it’s a pretty exciting time of year for, I suspect, all of us.

AA: Nina, thank you so much for your time, and best of luck.

NT: Thanks, Alex.

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