Supreme Court justices clash over gay marriage

US Supreme Court justices clashed on Tuesday over the fundamental question of how to define marriage as part of a case that could decide whether same sex couples have a constitutional right to marry.

The divided nine-member panel means the decision could come down to the views of Justice Anthony Kennedy, who provided the swing vote in 2013 and joined liberal justices in federally recognising gay couples who married in states where that is legal.

But that 2013 decision stopped short of recognising the constitutional right to marriage for same sex couples, which the Supreme Court debated on Tuesday. Deciding there is such a right would force states that have prohibited gay marriage to allow for such unions, and make gay marriage legal nationwide.

Hundreds of people on both sides of the issue protested outside the court. One anti-gay marriage protester briefly disrupted the oral arguments. "Homosexuality is an abomination," he shouted before he was hauled outside.

Several of the justices, including Justice Kennedy, expressed concern about redefining marriage between a man and a woman, which has been the way society has characterised that institution for thousands of years.

"This is a definition that has been with us for millennia," Justice Kennedy said. "It's difficult for the court to say, well, we know better."

But he also questioned why gay couples should not also have equal access to marriage, which he called a noble institution.

"That's assuming same sex couples have no noble purpose," Justice Kennedy said.

The Supreme Court case combines four challenges to gay marriage bans that exist in Kentucky, Michigan, Ohio and Tennessee. Attorneys for those states argued on Tuesday that marriage was about procreation and keeping couples together for the sake of their children. Therefore, if same sex marriages were allowed, more children would be born out of wedlock.

"Changing the definition [of marriage] matters," said John Bursch, the special assistant attorney-general for Michigan.

Chief Justice John Roberts also said deciding on the issue could close an important debate that has seen dramatic changes in a short period of time, while Justice Antonin Scalia said gay marriage should be up to the voters to decide, not the court.

But Donald Verrilli, the US solicitor general who represented the US government, said leaving gay marriage to the political process would result in a "house divided", much like the country was when some states allowed for racial segregation.

"There would be a minority of states relegated to demeaning gays and lesbians as second-class status," Mr Verrilli said. "I don't know why we would repeat that history."

The liberal justices of the court said the definition of marriage has changed over time, citing past practices where a man was allowed to be dominant over the woman in a marriage or instances where interracial unions were illegal.

"Should a state not give a marriage licence to anyone who doesn't want to have children? Would that be constitutional?" Justice Elena Kagan asked.

In debating whether marriage is defined solely as a union between a man and a woman, the justices questioned how states may deal with polygamy, teenage marriages and unions between relatives.

The court could split its decision and possibly decide against a nationwide constitutional right to gay marriage, but require states to recognise same sex marriages of those who obtain licences in other states that allow it.

Attorney-general Loretta Lynch said in a statement: "I am committed - as is this department - to ensuring equal dignity and equal treatment for all members of society, regardless of sexual orientation. As we argued today before the Supreme Court, same-sex couples deserve that treatment now. "

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