My first take on today’s oral argument in the Supreme Court:
The United States Supreme Court heard oral arguments in Obergefell v. Hodges, No. 14-556, on April 28, considering the questions whether same-sex couples have a right to marry and to have their marriages recognized by states other than those in which they marry. The case consolidated appeals from the plaintiffs in four states – Ohio, Tennessee, Michigan and Kentucky — whose district court victories were reversed by the U.S. Court of Appeals for the 6th Circuit in %DeBoer v Snyder%, 772 F.3d 388 (6th Cir. Nov. 6, 2014). Most commentators agreed that it was possible that the Court would reverse the 6th Circuit on one or more grounds, but during the argument the Court appeared closely divided, and the “swing Justice,” Anthony M. Kennedy, Jr., did not give any clear signal from his questioning and comments about which way he was leaning, sometimes appearing skeptical about the plaintiffs’ claims, at other times supportive.
The Petitioners (plaintiffs in the trial courts) and Respondents (the states, which were defending their victory in the Court of Appeals), had complied with the Court’s request to designate one advocate from each side on each question, with the addition of Solicitor General Donald B. Verrilli, Jr., arguing in support of Petitioners on behalf of the Obama Administration. Petitioners designated Mary Bonauto, Civil Rights Project Director at Gay & Lesbian Advocates & Defenders, the Boston-based public interest law firm, to argue the marriage question, and Douglas Hallward-Driemeier, head of the Supreme Court litigation practice at the law firm Ropes & Gray LLP, to argue the recognition question. This was Bonauto’s first Supreme Court argument, but not her first appellate argument on marriage equality, as she had argued the Massachusetts marriage equality case in 2003 that led to the first legal same-sex marriages being performed in the United States. The Respondents settled on former Michigan Solicitor General John Bursch to argue the marriage question, and Tennessee Associate Solicitor General Joseph Whalen to argue the recognition question. Whalen was the only one among the advocates who personally participated in the argument before the 6th Circuit, successfully defending Tennessee’s ban on recognition of same-sex marriages.
Bonauto led off the argument and it quickly became clear that the four Democratic appointees to the Court – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – were likely votes in favor of same-sex couples having the same fundamental right to marry as different sex couples. Chief Justice John Roberts quickly moved to dispel the speculations of some commentators that he was a potential vote for marriage equality, as he suggested that what the plaintiffs were seeking was not just “to join the institution, you’re seeking to change what the institution is.” Roberts characterized “the opposite-sex relationship” as “the fundamental core of the institution” of marriage, and he signaled opposition to the idea that judges rather than legislatures or the voters in referenda should decide whether to change that definition.
As expected, Justice Antonin Scalia weighed in with arguments familiar to anybody who read the 6th Circuit opinion by Judge Jeffrey Sutton, one of his “originalist” acolytes. Scalia asserted that the question before the Court was not “where there should be same-sex marriage,” but rather “who should decide the point,” and clearly signaled his view that it should be decided by the democratic process of voting and legislating, not by judges. None of Justice Samuel Alito’s questions or comments suggested any real sympathy for the plaintiffs’ position either, and of course Justice Clarence Thomas was true to form in refraining from questioning or offering comments.
So, as had been speculated from the beginning, the outcome will likely fall to Justice Kennedy, and his opening sally was not calculated to reassure those who were counting on him to quickly embrace the trajectory of his prior opinions for the court in the DOMA and sodomy cases. “This definition [of marriage] has been with us for millennia,” he pointed out. “And it’s very difficult for the Court to say, oh, well, we know better.” On the other hand, he noted that the amount of time between the Supreme Court’s decision striking down racial segregation in public schools and subsequent decision striking down laws against interracial marriages was “about the same” as the time between striking down sodomy laws and the present case on same-sex marriage. “And so there’s time for the scholars and the commentators – and the bar and the public – to engage in it,” he pointed out.
Kennedy came closer to tipping his hand in the other direction when John Bursch stood up to argue on behalf of the states defending their marriage bans. Kennedy pressed Bursch to explain how allowing same-sex couples to marry would harm “conventional marriage,” but he left it to the other justices, particularly Breyer and Kagan, to pursue the point as Bursch put forward the notion that the state has a particular interest in assuring bonds between children and their biological parents, with Kennedy only interjecting a question of two along the way, although he characterized as “just a wrong premise” the argument that “only opposite-sex couples can have a bonding with the child.”
Kennedy seemed particularly indignant when Bursch discounted the significance of the dignity that the state bestows on a couple by according them the right to marry. Bursch had suggested that the state has no particular interest in this, being primarily concerned with children, not with the relationship between the adults. This was not a good strategic move on his part, in light of Kennedy’s expressed concern in his DOMA opinion about the “dignity” states confer on married couples. “I don’t understand this not dignity-bestowing,” Kennedy commented. “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 same enoblement.” When Bursch insisted that “the State has no interesting in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same-sex couples or from anyone based on their sexual orientation,” Kennedy sharply responded, “Well, I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.”
Solicitor General Donald Verrilli focused his argument entirely on equal protection, and he was pushed during the questioning on his failure to make the fundamental right to marry argument. It became clear from the questioning from the conservative justices that they saw the right to marry argument as a non-starter because of – at least in their view – the difficulty of accepting a fundamental right to marry and then having to confront arguments on behalf of a right to plural marriages. Alito posed a hypothetical about two men and two women seeking to marry as a foursome, which introduced a discordant note into the discussion, and Scalia also harped on this issue.
One absurd point arose when Scalia questioned Bonauto about whether a minister might be required to perform same-sex marriages against his or her religious belief. Bonauto responded that the First Amendment would shield a minister from any such obligation, but Scalia insisted that if there was a constitutional right to marriage, that might be held to overcome the minister’s free exercise of religion defense. Bonauto pointed out that no minister had been prosecuted for refusing to perform marriages in marriage equality states, and Justice Kagan jumped in with the example of rabbis who refuse to perform marriages between Jews and non-Jews. While listening to this part of the argument, I was waiting for somebody to raise the example of Catholic priests who condition their willingness to perform marriages between Catholics and non-Catholics upon the commitment of the non-Catholic parent that the children be raised as Catholics, but nobody suggested that. Of course, consistent with the Free Exercise Clause, no court would ever order a religious officiant to perform weddings that would violate their religious beliefs, so this was a silly line of questioning.
Bonauto closed with a rebuttal argument that was so precise and well-focused that she was not interrupted for any questions as she highlighted the basic inconsistencies in Bursch’s arguments. One note of unexpected rama was introduced when a member of the audience stood after Bonauto had finished and burst into a diatribe about sin and abomination until escorted out by security officials. Chief Justice Roberts seemed ready to delay the Solicitor General’s argument, but Verrilli signified he was ready to press forward. Scalia made a cryptic remark that the outburst was “refreshing.” Perhaps he meant to suggest that the Court seriously consider religious objections to same-sex marriage.
After a brief recess, the Court turned to the second question, whether states are required by the 14th Amendment to recognize same-sex marriages contracted in other states. Douglas Hallward-Driemeier was quickly interrupted by Justice Alito. “I am somewhat surprised by the arguments you made in your brief,” he said, “because they are largely a repetition of the arguments that we just heard with respect to Question 1. I thought the point of Question 2 was whether there would be an obligation to recognize a same-sex marriage entered into in another State where that is lawful even if the State itself, constitutionally, does not recognize same-sex marriage. I thought that’s the question in Question 2. Am I wrong?”
This quickly clarified a mystery that had caused much speculation among legal commentators after the Court announced that it would review the 6th Circuit’s decision. Why the second question, since it seemed obvious that if same-sex couples have a right to marry the right to recognition of out-of-state marriages would naturally follow? This question was posed so that if the Court ruled against the plaintiffs on the right to marry, it could then confront the question whether a state that refuses to allow same-sex marriages – and is constitutionally free to do so – may nonetheless be obliged to recognize out-of-state same-sex marriages. Justice Alito’s question thus framed the issue for the second hour of argument.
And Alito and Scalia energetically followed up with questions and hypotheticals about forcing states to recognize the validity of marriages that they wouldn’t allow to be formed within their own borders. Even Kennedy joined in briefly, pointing out that if the Court determined that states do have a sufficient justification for refusing to issue marriage licenses to same-sex couples, might not the same justification suffice to allow them to refuse to recognize such marriages from out-of-state? Justice Ginsburg did jump in to nail down the point that if the plaintiffs won the right to marry on Question 1, “then the argument is moot.” Hallward-Driemeier agreed with her, as Joseph Whalen also conceded during his part of the argument. Hallward-Driemeier emphasized the harms to same-sex couples who married and had children in other states and then might be moved by an employer – the starkest example was the military as an employer – to a state that didn’t recognize their marriage. This seemed well-calculated to appeal to Justice Kennedy, since he had articulated a concern for the welfare of children of same-sex couples in his DOMA opinion.
As soon as Whalen got up to defend the recognition bans, Scalia appeared to surprise him by raising the Full Faith and Credit Clause, Article IV of the Constitution, which has barely been mentioned over the past two years of marriage recognition litigation. In 1996, Congress adopted as part of the Defense of Marriage Act a provision stating that states were not required to accord full faith and credit to same-sex marriages from other states. That provision has not been declared unconstitutional, and in the DOMA decision Justice Kennedy observed that it was not being challenged in that case. Instead, lower federal courts have focused on the Equal Protection Clause and generally found that states had no rational basis for recognizing different-sex marriages from other states but refusing to recognize same-sex marriages. Some scholars addressing this issue after passage of DOMA in 1996 observed that traditionally the Full Faith and Credit Clause had not been invoked in marriage recognition cases, since it was not really clear that the Clause even applied to marriages.
But Scalia pressed the point with Whalen. Always the textualist, Scalia said, “I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant. ‘Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State.’ Now, why doesn’t that apply?” Whalen sought to draw a distinction between “judgments” of courts, which courts routinely honor, as opposed to “laws of each state.” “And the reason in part that the Court’s decision have said that is that otherwise, each State would be able to essentially legislate for every other State,” he continued. “Public acts?” asked Scalia in response. “It would include the act of marrying people, I assume.” Whalen responded, “My understanding of this Court’s decisions as the reference in the Constitution to public acts is that each State’s laws.” “So there’s nothing in the Constitution that requires a State to acknowledge even those marriages in other States that are the same?” asked Scalia, receiving an affirmative response from Whalen. “Really,” asked Scalia, sounding skeptical. Justice Breyer was eventually drawn into the discussion, indicating he might have to head back to his chambers and start reading Full Faith and Credit cases, evoking laughter from the audience. Other justices were soon drawn in to what became a rather esoteric conversation about the interpretation and application of the Full Faith and Credit clause, which one suspects was not fully anticipated by the advocates. There even seemed to be some indication, if perhaps just fleeting, that Chief Justice Roberts might see an application of the Full Faith and Credit Clause here, which could feed speculation that even if the Court were to rule adversely on Question 1, there might be a majority including some of the more conservative justices in favor of marriage recognition. But only fleeting. . .
When Whalen picked up on Bursch’s argument about the state’s interest in maintaining its definition of parenthood as “biologically-based” as a reason not to recognize the parental status of same-sex spouses towards their children, Justice Sotomayor jumped in, responding to his assertion that Tennessee had always rooted the meaning of parenthood in a biological relationship between parent and child. “Oh, but you do that for adoptions,” she said. “What’s the problem? This is a really big deal?” Whalen responded, “It is a big deal, Your Honor, because you are changing the way the State defines a parent. And in the adoption context, you have to understand adoption and the traditional definition of marriage, they work in tandem. They work together. As Mr. Bursch described, the objective with regard to marriage is to link children with their biological parents. When that breaks down, then there’s adoption.” Sotomayor responded by asking whether a state can refuse to recognize a birth certificate issued by another state that identifies same-sex spouses as the parents of a child. “Do you think the word ‘records’ in the Constitution includes birth certificates,” referring again back to the Full Faith and Credit Clause. After Whelan’s affirmative response, Sotomayor continued, “So California without any reason, no suspicion of fraud, no anything, could it refuse to recognize another State’s birth certificate. Records to me has to have a meaning.”
“Record has a meaning,” Whalen responded. “It does, your Honor. The reason that I’m hesitant is that I know that there is disagreement in the cases about exactly what the impact of that is between whether that just means we have to acknowledge the existence of the record for evidentiary purposes, or whether the effect of the record has to be acknowledged.” “But if a birth certificate were to be a record,” asked Sotomayor, “don’t you think a marriage certificate – it’s an official act of a State.” While Whalen acknowledged as much, he continued, “I think that the laws that allowed that marriage to occur, when they are different fundamentally with the laws of a State like Tennessee, preclude the application of that same principle from one State to the other.”
Hallward-Driemeier’s rebuttal, like Bonauto’s, was so tightly focused that none of the justices interrupted with questions. He concentrated on demonstrating the real harms suffered by same-sex couples exemplified by two of the plaintiff couples who had relocated and been denied recognition of their marriages, in one case in the context of emergency medical care for one of their children. This, of course, was well-calculated to invoke Justice Kennedy’s concern. For those looking to read the Kennedy tea leaves, there was little to work on in the Question 2 argument, since he barely spoke at all. Hallward-Driemeier ended with the stark evocation of Jim Obergefell’s struggle to be properly recorded as a surviving spouse on his husband’s death certificate.
Commentators and analysts are likely to pick over the transcript and audio recordings for the next few months trying to find hopeful signs about how the case will turn out, but they may be disappointed to find that the likely “swing” voter, Justice Kennedy, had much less to say than those justices whose positions are much more predictable pro and con. The most hopeful sign for marriage equality proponents springs not from these arguments, but more from the prior actions of the Court, denying review of the 4th, 7th and 10th Circuit pro-marriage equality rulings last October 6, which allowed same-sex marriage to go into effect eventually in all the states in those circuits, and denying stay petitions from several 9th Circuit states as well as Florida and Alabama, in cases that had not yet been reviewed by the 11th Circuit Court of Appeals (which had also refused to stay the marriage equality rulings from those states). These actions seemed to clearly indicate that a majority of the Court was on-board with marriage equality, since the stay denials contributed to facts on the ground spreading marriage equality to 37 states representing over 70% of the population, and making the prospect of an adverse ruling on Question 1 a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in those states. When viewed from that perspective, it seemed highly likely that Justice Kennedy would overcome any qualms he might have about suddenly abandoning “millennia” of different-sex marriage traditions in favor of avoiding the dignitary, financial and other harms suffered by same-sex couples and their children denied the benefits of marriage.Tags: gay marriage, marriage equality, Obergefell v. Hodges, same-sex marriage, Supreme Court