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While We Wait: Some Thoughts On Listening to the Oral Argument on Marriage Equality

As we await the Supreme Court’s imminent decision on national marriage equality, Gary Buseck, GLAD’s Legal Director and long-time colleague and co-strategist of Civil Rights Project Director Mary Bonauto, offers his thoughts on the issues raised in the April 28 oral argument.

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Mary Bonauto talks to press outside the Supreme Court following oral argument April 28

Like everyone, I felt a tremendous excitement waiting for oral argument to begin and to hear my colleague Mary Bonauto address the Court on the first question presented – whether the States are obligated under the Fourteenth Amendment to issue marriage licenses to same-sex couples.

We all were sure that Mary’s time – the first 30 minutes – would be the most contentious part of the whole two and a half hours of argument and would be no cake walk.  And it wasn’t! Mary opened by saying “The legal commitment, responsibility and protection that is marriage is off-limits to gay people as a class.  The stain of unworthiness that follows for individuals and families contravenes the basic constitutional commitment to equal dignity.  Indeed, the abiding purpose of the Fourteenth Amendment is to preclude regulating classes of persons to second-class status.”

And then the questioning began.  To be sure, the first question (as is typical) came from Justice Ginsburg and teed up a point that everyone had been thinking about in the weeks leading up to argument – what to make of the fact that, in the Windsor case, the Court (speaking through Justice Kennedy) had stressed historic federal deference to the States when it comes to family law matters.  Mary answered that Windsor was clear both that the States had primacy over domestic relations BUT that the States’ law must still respect the constitutional rights of everyone.

An intense series of questions followed from a number of Justices.  Chief Justice Roberts asserted that we are seeking not to join the institution of marriage but to change or redefine it. Justice Kennedy then made his remarks about the millennia of the different-sex understanding of marriage, contrasting that with the amount of time the country has been discussing same-sex couples marrying.

Justice Kennedy followed shortly thereafter with another question about timing, namely that the roughly 10 years between Brown v. Board of Education and Loving v. Virginia had been about 10 years, and that about 10 years had passed since Lawrence v. Texas to that date.   Mary pursued the parallel, noting that the Court first received a marriage case 40 years ago (referring to Baker v. Nelson from Minnesota) and that: “When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. It has been exhaustively aired, and the bottom line is that gay and lesbian families live in communities as neighbors throughout this whole country.”

For the next 25 minutes or so, the Court stayed pretty focused on a few topics:

  • The long-time of “traditional marriage” and the short time since same-sex couples could marry anywhere;
  • Wouldn’t a “wait and see” approach be appropriate;
  • Does the Court know better – on something so new;
  • Isn’t the debate a good thing and isn’t there a real danger in cutting it off;
  • An invocation of ancient Greece (and Plato) – as well as the Kalahari people – to talk about, in the former, a society that supposedly accepted gay relationships but did not offer marriage and, in the latter, a society that created different-sex marriage without any formal government; and
  • Polygamy and how a ruling may or may not relate to it.

Mary repeatedly pointed the Court to the Fourteenth Amendment as the polestar for the case, and how distinctions that we once accepted have come to be seen as unconstitutional.

Justice Scalia repeatedly asked whether a consequence of a ruling in our favor would mean that ministers would have to marry same-sex couples even if it is contrary to their faith.  Of course they won’t have to, and Mary pointed to the First Amendment and the fact that they haven’t had to in any of the marriage states over 11 years.

Most importantly, to me, Mary emphasized that there are individual liberty and equality principles at stake here; and we have crossed this bridge before when that exercise of individual liberty was considered a profound change in marriage – for example, lifting the bar on interracial marriage.  Equally important, she brought home that “wait and see” is not neutral and is not a justification for a constitutional violation.

As many news accounts noted, few legal questions arose – questions like: Is there a fundamental right to marry that should be recognized and available to same-sex couples?  What level of scrutiny under equal protection should be applied when a government draws lines based on sexual orientation? Are there federalism concerns of the Court involving itself with the States’ sovereign control of marriage?

Those questions were, however, extensively briefed by the parties and numerous friends of the court in amici briefs. And recalling that the Court heard the marriage question back in 2013 in the Prop 8 case, but did not reach the merits because of jurisdictional issues, it is interesting that there was not a single reference to any potential jurisdictional problems with any of the present cases.  In short, the Justices were engaged and demonstrated that they remain a “hot bench.”   Mary withstood the intensive questioning, making many judgment calls on her feet, and before sitting down and reserving rebuttal time, answered “who decides” as not an issue of the courts versus the states, but of the individual versus the government.

Next was the United States Solicitor General, Donald Verrilli – who the Justices call “General”.

It was thrilling to have the chief lawyer for the entire nation arguing in support of our position. The Solicitor General was powerful and passionate.  And because he is “the General” and appears regularly before the Court, the Justices were deferential and gave him more time to articulate the government’s positions before jumping in.

Right off the bat, the Solicitor General noted how the exclusion from marriage demeans the dignity of same-sex couples and their children, and addressed how “wait and see” was so wrong.  He was able to make his three points: (1) that exclusion was not wait and see but validation of the exclusion; (2) leaving it to the political process creates something approximate to the “house divided” that we had with de jure racial segregation; and (3) waiting imposes enormous costs “of constitutional stature” on thousands and thousands of people who will live and die without “their States ever recognizing the equal dignity of their relationships.”

The Government has made only an equal protection argument, and “the General” made clear why.  He said that while there is a profound connection between liberty and equality, the Government believes this issue “sounds in equal protection” because the “question is equal participation in a State-conferred status and institution.

The Solicitor General closed by noting that the Court has a duty to decide the question.  Gay and lesbian people are part of our community and it is “simply untenable” to suggest we can be denied equal participation in the institution of marriage or be required to wait “until a majority is ready to treat gay and lesbian people as equals.  Gay and lesbian people are equal. They deserve equal protection of the laws, and they deserve it now.”

That ended the 45 minutes of argument allotted to our side of Question 1 and then the podium was turned over to John Bursch to argue for 45 minutes for the states, Michigan and Kentucky, seeking to uphold their marriage bans.

Mr. Bursch’s overarching theme to which he returned again and again was procreation.  To allow same-sex couples to marry would cause marriage to be de-linked from procreation; that this can reasonably be believed to be a change that would lead over the course of generations to additional children born outside of marriage. All the States must show in order for the Court to affirm the States’ bans, he argued, was that people can reasonably worry about this possibility.

A somewhat minor leitmotif was the notion that the state bans are not about harming anyone based on sexual orientation or demeaning anyone or not supporting gay people as parents.  Rather, it is about “solving a problem,” that is, marriage is limited to tying children for life to their biological mothers and fathers.

These themes generated a lot of questioning from Justices Ginsberg, Kagan, Sotomayor and Breyer as well as Justice Kennedy.

Here are a few of the questions and comments Mr. Bursch faced:

  • From Justice Breyer – marriage is fundamental and has been for millennia and it has been open to vast numbers of people – except gay people – why?
  • From Justice Ginsburg – but this isn’t taking anything away from heterosexual couples.
  • From Justice Kennedy – but you are assuming “that same-sex couples could not have the more noble purpose [for entering marriage] and that’s the whole point.”  Gay people want “to show that we, too, have a dignity that can be fulfilled.”  So, how do you get to some rational or important distinction?
  • From Justice Sotomayor – as to the asserted voter feeling that heterosexuals might not stay bound to their children if gay people can marry, “Do we accept a feeling? Why would a feeling, which doesn’t make any logical sense, control our decision-making?”
  • From Justice Breyer – fine on binding parents to their children but gay people want to have children too and do.
  • From Justice Kennedy – and under your view, it will be difficult for same-sex couples to adopt.  “I think that argument cuts quite against you.”
  • From Justice Kagan – very hard to see how permitting same-sex couples to marry “discourages people from being bonded with their biological children.”
  • From Justice Kagan – “indeed, Loving was exactly what this case is” – liberty and equality intertwined.
  • From Justice Kagan – you’re doing something we’ve never done before – “you are defining constitutional rights in terms of the kinds of people that can exercise them” especially where claims are rights-based and equality-based and noting that this is precisely the opposite of Lawrence.

One exchange was particularly notable in light of the Court’s recent jurisprudence.  Mr. Bursch went out of his way to argue that marriage is “not dignitary bestowing” but is solely about linking parents to biological children. Justice Kennedy, whose opinions have highlighted the dignity of the person under the Constitution, and who has written in historic decisions of the dignity of gay people as equal citizens, questioned this assertion.

He said to Mr. Bursch: “I thought that was the whole purpose of marriage.  It bestows dignity on both man and woman in a traditional marriage… It’s dignity bestowing, and these parties say they want to have that – that same ennoblement.”  And then, just a few moments later, “Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of   both the parties.  I’m puzzled by that.”

Justices Alito, Roberts and Scalia were very quiet during Mr. Bursch’s argument.

With Mr. Bursch done, that led to Mary’s return for 3 minutes of rebuttal.

Mary hit hard on the “impoverished” vision of marriage being presented by the States: “First, I want to say, that the ideas of marriage will change is a false dichotomy. Right now, different sex couples can choose to marry and rear children. They can choose to marry at 70 or 90 because of their commitment to one another. We honor both marriages. It is only same-sex couples who are foreclosed from marrying under either vision.”  She then turned to sex discrimination, something Chief Justice Roberts raised as a question to Michigan’s attorney.  While Mr. Bursch hewed to a vision of sex discrimination as treating men and women differently (which the marriage bans do, as the Chief Justice noted), Mary addressed the substantive sex discrimination claim, i.e., that by wishing to marry someone of the same sex, gay people are behaving in ways that defy the stereotype of how a “real woman” or “real man” should behave.

Finally, speaking of April DeBoer and Jayne Rowes, the couple challenging Michigan’s ban, who are raising multiple children placed with them by the State, Mary summed up by saying the only way to make sense of Michigan’s argument is that the States care about children, and not just how they are conceived: “…the only way I can really understand Michigan’s points about procreation and biology and so forth is when I look, for example, at page 31 of their brief. And they say what they care about is people who have children staying together and providing a long-term, stable situation for their children. That interest applies full force in this context, because by denying marriage to same-sex couples, you are denying not only the protection for the adults, which is independently important, you are denying those protections and that security that would come from having married parents.”

With Question 1 done, we turned to Question 2 on whether the Fourteenth Amendment requires the States to recognize the valid marriage of a same-sex couple entered in another state.

Here the Court and the parties all seemed to agree that Question 2 only becomes relevant if we lose on Question 1.  If we win on Question 1, Question 2 is not relevant.  Put the other way, if the States lose on Question 1 then they lose on Question 2 as well.

With that essentially settled early, the Court and the oralists mostly engaged in discussion about: (1) if the States are free to refuse to license marriages of same-sex couples, how can they be bound to recognize such a marriage from another state?  Mary’s counterpart on the second question focused on Windsor’s finding that a couple possesses a liberty interest in their existing marriage; and (2) arguments about the Full Faith and Credit Clause of the Constitution (which requires States to credit the “public acts, records and judicial proceedings” of every other State)?

Douglas Hallward-Driemeier argued first for the couples or widowers from their home states of Ohio, Tennessee or Kentucky who were married elsewhere. Douglas made a strong argument that refusing to recognize our marriages in these circumstances was essentially the same as the federal government refusing to recognize valid marriages under DOMA.  And that refusal of recognition must fall just as it did in the Windsor case about DOMA.

Arguing for the states was Mr. Whelan from Tennessee, who essentially had one point – states generally recognize other states’ marriage but here, states that allow same-sex couples to marry are “no longer on the same page” as to the meaning of marriage and so all states can’t be required to follow along.  If one state changes its law to allow same-sex couples to marry, this could then impose “same-sex marriage” on the entire country.  (This, of course, was a motivation behind DOMA where there was fear that marriage was coming to Hawaii such that couples from everywhere in the country would rush to Hawaii; marry; and then return home to demand that their home state recognize their marriage.)

Ultimately, there is no way of knowing how the case will turn out although it is pretty clear that we will see a decision on the merits at the very end of June. As Mary said recently, “We cannot predict anything with certainty, but there is certainly cause to be hopeful.”