The justices of the Supreme Court engaged in a two and a half hour debate Tuesday over whether the Constitution guarantees same-sex couples the right to marry.

The argument over same-sex marriage bans in Michigan, Ohio, Kentucky and Tennessee was divided into two segments. 

Eight of the justices are sticking with their expected views, with Justice Anthony M. Kennedy being the swing vote. 

Justice Kennedy at times seemed hesitant about moving forward and then empathetic when he made the case that same-sex couples should have the right to marry, according to The New York Times. 

The issue, Justice Antonin Scalia said, is not whether there should be same-sex marriage, but who should decide it. He said the people or their elected representatives should decide, not the courts. 

One of the court’s liberal justices, Stephen G. Breyer, said “You want nine people outside the ballot box to require states that don’t want to do it to change what marriage is to include gay people? Marriage is about as basic a right as there is.”

The traditionally conservative side of the court argued a ruling for same-sex marriage would require some clergy members to perform ceremonies against their religious beliefs.

Justice Elena Kagan said at the end of the first argument that she hoped the Supreme Court would find a right way to handle same-sex marriage. She said the court does have a role in protecting minorities even though majorities may have made their views known in voting for the issue.

“We don’t live in a pure democracy,” Kagan said in The New York Times. “We live in a constitutional democracy.”