How the Oral Arguments on Marriage Cases Will Go

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.

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  • John Pieret

    What’s more, the Court has also announced that, in a rare move, it will be releasing the audio of the oral arguments, along with an unofficial transcript, both of which should be available no later than 2 p.m. today. They will be found here:

    http://www.supremecourt.gov

    Be there or be square!

  • http://www.thelosersleague.com theschwa

    I believe one of the arguments will go:

    1. Man-woman marriage is good.

    2. ??

    3. Therefore, states should be able to ban gay marriage.

    4. Also, think of the children!!

  • generalfactotum

    On a related note, Mat Staver will be discussing this issue on VCY’s “Crosstalk” show, broadcasting from 2-3 PM Central. It is a call-in show, so anybody will be able to ask him questions. It’s also broadcast on the Internet. I’d love to hear something other than the standard gay-bashing (they don’t let me on anymore), and it’s a great opportunity to make him squirm.

  • John Pieret

    P.S. SCOTUSblog will probably be liveblogging the oral arguments, as they usually do in important cases.

  • John Pieret

    P.P.S. They are liveblogging it, which will be found here:

    http://www.scotusblog.com/2015/04/live-blog-obergefell-v-hodges-oral-argument-updates/

  • John Pieret

    From the live blog:

    Bonauto [the lawyer arguing for the plaintiffs on the issue of the constitutional right to marry] closed her argument with a neat turn of phrase. The Court had said that the question is “who decides” whether same sex marriage will be lawful: the courts or the states? She responded that the choice is not between the Court and the state, but instead whether the individual can decide who to marry, or whether the government will decide for him.

  • themadtapper

    The banner at the top of the SCOTUS blog page is excellent. On the left side there are people with rainbow banners, and signs like “Love for all” and “Marry me”. On the right, people holding signs like “You need Jesus” and “Homo sex is evil”. For all their talk of states’ rights and tradition and redefinition and social experiments, what it all really boils down to is religion. It always has. And the SCOTUS knows it. The lawyers arguing for the bans before the court will try to avoid it, but no one buys it anymore. The only members of the court that will rule in favor of the bans will do so out of religious motivation, though they’ll wrap it (poorly) in musings about slippery slopes and long-standing tradition garbage.

  • John Pieret

    The live blog is about to report on how the second part of the argument (the Federal government’s and state’s response) on the question of a constitutional right to marriage went.

  • John Pieret
  • John Pieret

    The audio and transcript of the argument (at least on question 1) is now available:

    http://www.supremecourt.gov/oral_arguments/audio/2014/14-556-q1

  • http://www.ranum.com Marcus Ranum

    “Waiting is not neutral.”

    ZING!!!!! Way to go!

  • John Pieret

    Opps, too quick, the transcript is still pending.

  • themadtapper

    Chief Justice John Roberts said gay couples seeking to marry are not seeking to join the institution of marriage.

    “You’re seeking to change what the institution is,” Roberts said, the AP reported.

    From the NBC report on the oral arguments. They didn’t post Bonauto’s reply though. I’d hope she challenged the shit out of that. Roberts is horribly and infuriatingly wrong there. NOTHING about marriage would change except who is being allowed to participate. This whole claim that LGBTs want to “fundamentally change the institution” is horseshit.

  • Reginald Selkirk

    Kennedy plays the tradition card

    Chief justice John Roberts then said he looked up definitions and they were all between a man and a woman, and justice Anthony Kennedy added: “the word that keeps coming back to me in this case is millennia plus time.

    “This definition has been with us for millennia*, and it’s very difficult for the court to say ‘oh well, we know better.’”

    * Unless your ancestors were Mormon, or from one of the many polygamous cultures (Islamic, and others) which still exist in plentitude.

  • themadtapper

    Arguments are finished. SCOTUS blog doesn’t feel like there will be a split on the questions themselves: either yea on both or nay on both.

  • eric

    “This definition has been with us for millennia*, and it’s very difficult for the court to say ‘oh well, we know better.’”

    Well, so was slavery and lack of equal rights for women. Sometimes it is good to say “we know better.”

  • freemage

    The two-question format makes me a bit nervous. After all, if the answer to the first one is “Yes” (as it should be), doesn’t that pretty much answer the second by default? It’s clear the court is at least considering the possibility of a nation where only some states perform marriages that everyone is then required to recognize (which will make divorce, etc, a nightmare).

  • themadtapper

    @17: They talked about that on SCOTUS blog. Giving a split answer between those questions would cause all manner of legal nightmares, so conventional wisdom is that the SCOTUS will not split on that. SCOTUS blog said they got the same impression from the way the arguments and questioning went. It’s still technically possible, but it’s unlikely. The question is really more of whether it will be yea or nay (I think most everyone expects yea), and if yea whether it will be 5-4 or 6-3.

  • John Pieret
  • John Pieret
  • John Pieret

    That’s the transcript on the argument on question 1.

  • Chiroptera

    Kennedy, quoted by Reginald Selkirk, #14: “…and it’s very difficult for the court to say ‘oh well, we know better.”

    Jesus Christ! This guy graduated from law school and was promoted to one of the highest offices in the Republic? “Know better” about what? Nations and several states have had same sex marriage for decades; this issue has been argued in the courts of this country for decades; he has just fucking listened to some of those arguments just now! What questions does he think are still unanswered?

  • eric

    From the WashPo summary (@10, thanks John) it doesn’t sound like there were any surprises. The conservative judges threw classic conservative softballs and the liberal judges threw classic liberal softballs. Kennedy seemed to play the part of a conservative (with comments such as ‘why should the court intervene now’ and ‘I keep coming back to millennia…’).

    If Ed and others are right and oral arguments are not a good indication of what’s going on in the Judge’s minds, then I would describe this as everyone holding their cards pretty close to their chests. None of the judges were going out on a limb to make a point or arguing more/less forcefully for their position than one would normally expect. OTOH maybe that’s just the WashPo’s summary hitting what they consider the most relevant notes and the full transcript and/or audio will be more revealing.

  • themadtapper

    What questions does he think are still unanswered?

    The question of which one makes him feel more guilty: Making poor little heterosexual baby Jesus cry, or stepping on the lives and dignity of countless LGBTs around the country. That it is still a question for anyone makes the mind reel, though.

  • John Pieret

    A nice bit that Solicitor General, Donald B. Verrilli, Jr. ended with:

    … I would suggest is that in a world in which gay and lesbian couples live openly as our neighbors, they raise their children side by side with the rest of us, they contribute fully as members of the community, that it is simply untenable … untenable … to suggest that they can be denied the right of equal participation in an institution of marriage, or that they can be required to wait until the majority decides that it 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.

  • John Pieret

    The transcript of the argument on question 2 is now up here:

    http://www.supremecourt.gov/oral_arguments/argument_transcripts/14-556q2_2dp3.pdf

  • eric

    @4:

    4. Also, think of the children!!

    Oh, they do. That section starts on about page 47 of the first transcript. Some juicy tidbits:

    JUSTICE KAGAN: What is the reason for the exclusion rather than the reason for the noninclusion?

    MR. BURSCH: Well, first, it wasn’t a reason for an exclusion. It was a definition to solve a particular problem. But the reason why there’s there’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.

    So, allowing gays to marry will cause more straights to not-marry. Those not-marrying straights will have kids out of wedlock, and those kids will suffer for being out of wedlock. Let’s see what else Mr. Bursch has to say.

    MR. BURSCH: Well, let me give you an example. We’re we’re talking about something that’s going to change the meaning of the institution over generations. And and, you know, you have things like nofault divorce where we tweaked what marriage means, and it had consequences over the long term that some people didn’t expect.

    Oh. My. God. You mean SSM may be just as much a scourge on society as no-fault divorce? This cannot stand!!!!

    [MR. BURSCH, continued] I want you to think about two couples that are identically situated. They’ve been married for five years, and they each have a 3yearold child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together. A reasonable voter, which is what we’re talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems.

    Oh absolutely there could be different outcomes based on their reasons for getting married. The problem with this argument is that it is true of all straight married couples now. SSM won’t change the fact that different people get married for a variety of different reasons. Last quote (until I find something else that gets my gander up):

    MR. BURSCH: What we’re concerned about all the children, children of oppositesex couples and children of samesex couples. There are 72 million children in this country. If this Court ensconces in the Constitution a new definition of marriage and it reduces the rate that oppositesex couples stay together, bound to their children, because of that different understanding, even a 1 percent change

    JUSTICE BREYER: Well, what what evidence…

    MR. BURSCH: is many, many children…

    JUSTICE BREYER: is there of that?

    MR. BURSCH: A reasonable voter, again, looking at the two couples that I just described, one believing that marriage is all about staying with their kids, the other one believing it’s all about emotion and commitment, could have different results. And it’s reasonable to believe that.

    So, again, the conservative argument amounts to “if you let gays marry, straights will decide to be worse parents.”

  • themadtapper

    So, again, the conservative argument amounts to “if you let gays marry, straights will decide to be worse parents.”

    The reason all of their arguments are non sequitur like that is because they have to leave out a key component: Jesus. Letting LGBTs get married would normalize what they consider a wicked lifestyle, and they think normalizing that kind of wickedness will lead to normalizing other kinds. Problem of course is that they can’t say “because Jesus” in court because that gets them a swift Establishment Clause kick in the pants. So they end up with arguments that look like this:

    1) Gay marriage

    2) ???

    3) Rampant divorce

    1) Gay marriage

    2) ???

    3) Kids out of wedlock

    1) Gay marriage

    2) ???

    3) Incest/pedophilia/bestiality/necrophilia/catsanddogslivingtogethermasshysteria

  • D. C. Sessions

    “Who are we to decide?”

    I wish for once that Counsel would reply to that would-be-rhetorical question with:

    “Who are we, Your Honor? We are the people who decided we would not be ruled by kings. We are the people who decided to found a Government as a compact between sovereign citizens and without appeal to some Divine Authority. We are the people who shed more blood than in all of our other wars combined to end the practice of slavery among us. All those are of at least the antiquity of the ‘marriage’ you describe. And we are a people who look to Justice, not Tradition.”

  • Chiroptera

    Bursch, quoted by eric, #27: The other couple believes that that marriage is more about their emotional commitment to each other, and if that commitment fades, then they may not stay together.

    Huh. When I was a kid, it was the conventional wisdom that in that case, it was still better for the children if the parents separated rather than have them live in a household where the parents no longer cared for each other. Was that incorrect?

  • eric

    @28:

    The reason all of their arguments are non sequitur like that is because they have to leave out a key component: Jesus.

    It got in there! In a fairly unusual turn of events for SCOTUS, there was a protestor that stood up in the middle of oral arguments and started screaming about homosexuality being an abomination before the lord. From the WashPo’s (possibly sensational) description, they didn’t just hear him in the court room, but could hear his voice echoing down the hall for a long time after he was removed from the room.

    I very much doubt the Judges need the picture painted any clearer: I bet they all get exactly where the con- side motivation is coming from. The problem is, I very much doubt that knowing the bans are religiously motivated will change anyone’s opinion.

  • themadtapper

    The problem is, I very much doubt that knowing the bans are religiously motivated will change anyone’s opinion.

    Of course not. They’ve already known. The ones that are going to vote against same-sex marriage are all doing it because of religious motivations, regardless of what banalities they put in their dissent.

  • John Pieret

    eric:

    I thought Bursch did as well as possible, given what he had to work with. He stayed with his talking points (its “rational” to establish marriage to promote procreation, slipped away from the question of why it’s rational to exclude gays from marriage and basically toed the line that it should all be decided in the political realm). All and all, I’d give him a B+ or A- in appellate argument.

    But as to whether arguments are a good indication of what’s going on in the Judge’s minds, I would say “no.” I’ve argued quite a few cases in the less rarified air of New York appellate courts and have only been pretty sure of the outcome in one case where I, as the appellant, was asked no questions by the judges and the attorney for the appellee was peppered with many rather disdainful questions (of the type “Are you seriously arguing …”). The Supreme Court justices, I think, rather pride themselves (except Thomas, who never asks questions) on probing both the pro and con positions of each side.

  • abb3w

    So, when can we expect to see the canine reenactment of the oral argument on YouTube?

  • John Pieret

    Amu Howe at SCOTUSblog has a “Plain English” summary of the arguments and concludes that there are “No clear answers on same-sex marriage” to be found there:

    http://www.scotusblog.com/2015/04/no-clear-answers-on-same-sex-marriage-in-plain-english/

  • eric

    Another juicy tidbit. I think this was an “own goal” by Mr. Bursch, but it doesn’t look like any of the justices picked up on it at the time, so it will probably go unnoticed and not be relevant to the outcome. What a shame.

    To set some context, Bursch has been arguing to this point that Michigan’s reason for the institution of marriage is to promote children. One of the liberal justices has posed the hypothetical: what if the state decided to only permit people who want to/can have kids to get married – would that be constitutional? He tries mightily to avoid answering (because in another section, one of the justices point out that they are unanimous in agreeing such a rule would be unconstitutional), but in doing so, makes a bit of a slip. At least, it appears that way to me.

    JUSTICE GINSBURG: Suppose a couple, a 70yearold couple comes in and they want to get married.(Laughter.)

    JUSTICE GINSBURG: You don’t have to ask them any questions. You know they are not going to have any children.

    MR. BURSCH: Well, a 70yearold man, obviously, is still capable of having children and you’d like keep that within the marriage. But leaving that aside, what you’re talking about, Justice Ginsburg, is is a tailoring issue under rational basis, which we submit applies here. Vance and Heller both say that overinclusiveness is not something you need to worry about. But even if you applied some kind of heightened scrutiny, you know, again, many people get married thinking that they can’t have kids or won’t have kids, and they end up with children, and that the inclusion of those couples advances the State’s interest because of this greater idea.

    Now, I don’t know who Vance and Heller are or how much legal weight they pull with the Justices, but it sure sounds to me like Mr. Bursch just cited an argument that undermines his whole point. If overinclusiveness is not something the state need worry about, then there can be no reason not to ‘overinclude’ gay couples in marriage.

  • John Pieret

    Eric:

    “Vance” is Vance v. Bradley, 440 U.S. 93 (1979) and “Heller” is Heller v. Doe, 509 U.S. 312. What he is arguing is that, under the “rational basis” test, the fact that the law happens to include more people than those it purportedly intended to be benefited, that doesn’t, according to those two cases, show that it wasn’t rational. In this case, he argues, the fact that a law intended to promote procreation also benefited some people who were infertile (due to age, medical condition or choice to have a vasectomy or tubal ligation) doesn’t mean it was non-rational when it was adopted

    My response to that would be “If this new law/constitutional amendment wasn’t a product of animus against gays but just adjusting the law to focus better on procreation, why didn’t the state or the voters remove those other non-procreators from the protections of marriage at the same time?” It’s not so much that it proves there can’t be a rational basis but it is strong circumstantial evidence that the purported reason for the new law/amendment is a sham and a fig leaf to disguise the real reason for the law, to disadvantage a disfavored social class.

  • http://www.ranum.com Marcus Ranum

    “If this new law/constitutional amendment wasn’t a product of animus against gays but just adjusting the law to focus better on procreation, why didn’t the state or the voters remove those other non-procreators from the protections of marriage at the same time?”

    For that matter, why do they allow divorce?

  • quentinlong

    Damn all those un-Christian heathens who stamp their hobnailed boots all over the traditional, Godly institution of Biblical marriage! As we all know from the Good Book’s references to the marriages of various Patriarchs, true marriage—properly Biblical marriage—is a matter of one man, a couple hundred wives, and a few hundred concubines.

  • eric

    “Vance” is Vance v. Bradley, 440 U.S. 93 (1979) and “Heller” is Heller v. Doe, 509 U.S. 312. What he is arguing is that, under the “rational basis” test, the fact that the law happens to include more people than those it purportedly intended to be benefited, that doesn’t, according to those two cases, show that it wasn’t rational

    Thanks for that explanation. It would still seem to be pretty hinky to cite it here: the states didn’t pass laws that created some benefit for straight people, they passed bans of an activity nobody was doing before then. But maybe that gets back to the whole argument about harm (“it benefits all those single people who would have had kids in-wedlock if only SSM wasn’t allowed!!!”) , which we’ve already discussed.

  • dingojack

    Not entirely OT, but here‘s an interesting chart from that bastion of radical sexual politics, The Economist [28 April, 2015].

    Dingo