Today is the long-awaited oral argument in the four state challenges to bans on same-sex marriage (Michigan, Ohio, Kentucky and Tennessee) and SCOTUSBlog has a preview of how everything will go. It’s written for reporters, but it contains a great deal of important information on how exactly the arguments will proceed.
The first thing to note is that although there are four cases, they are all consolidated under one case, Obergefell v. Hodges, which is the Ohio case. When there are multiple similar cases that go up at about the same time, the first one to file for cert takes precedence and has the case named after them. And while each state gets to file their own briefs in the case, there will only be one attorney arguing on behalf of all four of them.
The Court has divided the two-and-a-half hours of oral argument time (ninety minutes more than the usual one hour allocated for oral arguments) into two parts. During the first ninety minutes, it will focus on the “marriage” question. As with the briefs, the plaintiffs challenging the state bans on same-sex marriage get to go first. And although there are four different cases with multiple plaintiffs in each case, only one lawyer will appear on behalf of the challengers on the marriage question: Mary Bonauto, a longtime gay rights advocate who received a MacArthur “genius” award last year and who will be arguing before the Justices for the first time. (Earlier in the month, this blog’s Lyle Denniston covered the process that determined which lawyers would argue in the case; on Twitter, Adam Liptak of The New York Times compared the lawyer-selection process on the plaintiffs’ side to “talks rivaling [the] Iran nuclear deal.”) Bonauto will have thirty of the forty-five minutes allocated to the challengers; after about twenty-five minutes (check your watch or the clock over the bench if you can see it), she will start trying to find a graceful point to sit down and reserve the rest of her time for her rebuttal. Especially in high-profile cases like this one, though, the current Chief Justice may extend her argument time if the Justices continue to pepper her with questions while she is attempting to finish up; if he does so, he will add the same amount of time to the state’s time at the lectern.
Next up at the lectern will be Solicitor General Don Verrilli, the federal government’s top lawyer at the Supreme Court. He will have approximately fifteen minutes to argue on behalf of the federal government in support of the challengers. He will use all of his time in one appearance; he doesn’t get an opportunity for a rebuttal.The third and final lawyer to address the “marriage question” will be John Bursch, arguing on behalf of the states. Bursch, the former solicitor general of Michigan, is now a lawyer in private practice and has argued at the Court eight times. Unlike Bonauto, Bursch won’t have to share his forty-five minutes with anyone else, but he also doesn’t get a rebuttal.
After Bonauto’s rebuttal time, the Court will move on to one hour of oral arguments, by two different lawyers, on the “recognition” question. Washington lawyer Douglas Hallward-Driemeier will argue on behalf of the challengers. Except for Verrilli, Hallward-Driemeier is the most experienced Supreme Court advocate in the group, having argued before the Justices fifteen times in both private practice and in his former position as an assistant to the U.S. Solicitor General. The United States is not appearing in this portion of the argument, so Hallward-Driemeier will get to use all of the thirty minutes allocated to the challengers, although – like Bonauto – he will try to save at least four or five minutes of that time for his rebuttal.
The states will be represented on the recognition question by Joseph Whalen, an associate solicitor general from Tennessee. Like Bonauto, it will be Whalen’s first oral argument before the Justices, but during his time in the Tennessee solicitor general’s office he has appeared on myriad Supreme Court briefs.
So why the two questions, referred to as the “marriage” and “recognition” questions? Because when the court grants cert, it specifies the exact question or questions the court seeks to answer in the case. In this case there are two:
1. Whether the Constitution requires states to allow same-sex couples to marry.
2. Whether the Constitution requires states to recognize the marriages of same-sex couples who were legally married in another state.
So in this highly unusual case, there will be entirely different attorneys arguing on behalf of all the parties on the two separation questions. After oral argument is over, there will be a transcript and audio available a few hours later. And you can go to SCOTUSBlog for live updates from the courtroom during the arguments starting at about 11 am.