Updates on the oral argument in the same-sex marriage cases.

At SCOTUSblog, here.

"The [petitioners] had said they were looking to 'join the institution of marriage.' The chief objected that perhaps they were not looking to redefine it, not join it. And he emphasized that he had looked up all the definitions he could find, and it was always a man and a woman..."

"Justice Kennedy said he had 'a word on his mind .. and that word is millennia'... He pointed out that the definition of marriage had prevailed for millennia and it seemed a fast change; on the other hand, he noted that the time between Lawrence and this case was about equal to the time between Brown and Loving -- this raised the question for him of whether this might all be too fast to redefine such a long standing institution."

So Roberts and Kennedy are thinking in terms of redefining the word.

Justice Scalia started a discussion about whether "a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding" and seemed satisfied with the argument that First Amendment rights would protect the minister.

The SCOTUSblog writer notes the contrast between the Justices who stressed "the 'millennia long' definition of marriage" and those who forefronted "the relatively new character of egalitarian marriage." Also, there was "a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece)."

SCOTUSblog reports from the oral argument in King v. Burwell.

By Eric Citron. Excerpt:

[Justice Kagan... offered (something like) the following example:  Imagine I tell law clerk A to write a memo, and law clerk B to edit law clerk A�s memo, and then I tell law clerk C to write such memo if law clerk A is too busy.  And imagine that happens � law clerk A is too busy, so law clerk C writes it.  Should law clerk B edit it?... In response, petitioner�s counsel said that the context mattered, and it would depend on whether the Justice was indifferent between law clerk A and law clerk C writing the memo in the first instance.  But that seemed to play into Justice Kagan�s hand, who made clear that this was her point � that in understanding this text, the context obviously mattered....

[Justice Kennedy]... pointed out that, under petitioners� reading, the federal government would be all but forcing states to create their own exchanges.... not just [because otherwise] their citizens would be denied benefits... [but also because] state insurance systems will fail if the subsidy/mandate system created by the statute does not operate....  For Kennedy, that seemed to make this case an echo of the last healthcare decision, where the Court concluded that it was unconstitutional coercion for the federal government to condition all Medicaid benefits in the state on expanding Medicaid therein....  Justice Scalia attempted to respond on petitioners� behalf that such concerns do not enter if the statute is unambiguous, but Justice Kennedy reiterated his concern with adopting a reading that would create such a �serious unconstitutional problem.�

ADDED: I need to see the whole transcript � context matters! � but if this accurately portrays Kennedy's overall analysis, I think the government will win. This idea is that the challengers' interpretation asks the Court to read the statute to do something that would have to be stricken down as unconstitutional, because it would coerce the states to set up the exchanges. Congress lacks the power to commandeer the states and may only offer the states a choice. If the incentive to make the choice Congress wants is too heavy-handed � as it was with the Medicaid expansion in the 2012 Obamacare case � the would-be incentive is viewed as coercion. So if the provision is unconstitutional under the challengers' interpretation, in Kennedy's view, he will have reason to agree with the government's interpretation (that is, he would follow the doctrine of constitutional avoidance).

AND: SCOTUSblog has a second person, Tejinder Singh, also doing mid-argument reporting. Excerpt:

Justice Breyer [noted] that if the phrase �established by the state� is read to exclude exchanges created by HHS, then other provisions of the statute that also use that phrase would be rendered inoperative or nonsensical... The statute provides that insurance shall be made available on exchanges to �qualified individuals,� and further defines a �qualified individual� to mean, �with respect to an Exchange, an individual who� both wants to enroll in a qualified plan, and also �resides in the State that established the Exchange.� The government, as well as Justices Breyer and Kagan, argue that if the only way for a state to �establish� an exchange is to create it on its own, then there would be no �qualified individuals� in states that failed to do so, and therefore there would be nobody on the [HHS] exchanges (and, as Justice Kagan surmised, no product to sell on the exchanges).