Two years ago, I was standing outside the capitol building in Indianapolis as part of a nationwide solidarity demonstration as the Supreme Court heard the oral arguments in Windsor v. United States. We were having our day in court and seemed that before the summer was over, we would finally be finished with the question of marriage equality.
But it wasn’t to be; the Court ruled more narrowly in Windsor than anticipated and while they struck down Section 3 of the Defense of Marriage Act (DOMA) on Fifth Amendment grounds, under the Due Process Clause, they did not strike down state laws barring marriage equality, only holding that the Federal government must recognize marriage equality in those states that had it.
In his dissent, Justice Anthony Scalia spoke prophetically “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
Fast forward two years to April 28th, 2015, the Supreme Court is once again taking up the issue of marriage equality in the case of Obergefell v. Hodges. The question for the Court is whether or not a state may refuse to issue a marriage license to a same-sex couple or whether or not a state can refuse to recognize such a marriage if it is performed in a state where such a marriage is recognized.
The legal strategy for this case is different than it was for Windsor, as Windsor argued on a strictly Federal level the primary Constitutional question was based around the Fifth Amendment and whether or not the Federal government denying recognition to a same-sex couple violated the Due Process Clause. Since Obergefell is based around states’ recognition or lack of recognition, the primary legal argument is based around the Fourteenth Amendment, specifically the Due Process Clause and Equal Protection Clause.
Mary Bonauto, speaking on behalf of the Petitioners, didn’t waste any time in her opening argument before the Court in addressing the question of the Fourteenth Amendment;
“The intimate and committed relationships of same-sex couples, just like those of heterosexual couples, provide mutual support and are the foundation of family life in our society. If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class, the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.
Indeed, the abiding purpose of the Fourteenth Amendment is to preclude relegating classes of persons to second-tier status.”
The questioning by the Justices was divided about where it was expected; Chief Justice Roberts tried the old claim that what the Petitioners were seeking to do was “redefine” marriage. I suppose it never occurred to him that words grow and change as time passes, just like any other part of human society. Justice Scalia tried desperately to prove that gay marriage never existed in previous societies and of course, tried to raise old fears about “religious liberty”. Ms. Bonauto stood her ground on that point and assured the Justice that the First Amendment was still in effect in this country.
The more liberal side of the Court tried to show some sympathy with Ms. Bonauto’s arguments, Justice Sotomayer particularly asking as it related to the question of protected class status, how LGBT people were treated not only in this country, but around the world.
Justice Kennedy, a long time legal defender of LGBT rights, seemed a bit unsure in his line of questioning, realizing that approximately ten years had passed since Massachusetts had become the first state with marriage equality, roughly the same time frame between Brown v. Board of Education and Loving v. Virginia, but still saying “it’s very difficult for the Court to say ‘Oh well, we know better’.”
John J. Bursch spoke for the Respondents in the case, his opening remarks to the Court seemed to be focused on who exactly gets to make the decision regarding marriage equality, speaking;
“This case isn’t about how to define marriage. It’s about who gets to decide that question. Is it the people acting through the democratic process or is it the Federal courts? And we’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.”
Mr. Bursch’s argument shows a shift in tactics from what our opposition used to proclaim. Their arguments against us in terms of marriage usually revolved around some deep personal loathing they had for us, a deep loathing that was obvious to everyone, even if they tried to sugar coat in that stale old “love the sinner, hate the sin” bullshit.
But with the decline in the sway of the Religious Right, maybe they’re realizing that that tactic no longer pays the dividends that it once did, so they have to try another approach. In this case, they are trying to appeal to the value of democracy, stating “Hey, this is the way the people voted, you have to respect it!”
However, it seems some of the Justices didn’t fall for that, particularly Justice Breyer who lacerated Mr. Bursch’s arguments in matter of minutes, pointing out that many of the Jim Crow-era laws were passed by popular vote, that didn’t make them right or just.
Mr. Bursch tried another angle; this one almost as equally ridiculous, he tried to make the claim that the reason the state has an interest in restricting marriage to heterosexual couples was because the state has a compelling interest to protect the welfare of children. A weak argument and Justices Ginsburg and Sotomayer were quick on the attack, asking Mr. Bursch if he would ask couples seeking to marry if they intended to have children and asking him about elderly couples who get married well past the age of fertility.
In his closing arguments, Mr. Bursch tried desperately to maintain his original argument of democracy, claiming that the state has no hard feelings towards LGBT folks, it’s just that this is a question that the people should decide and to hell with the courts.
The case certainly ran hot and not just during the actual Court proceedings, in a rare instance, a protester interrupted the Court by shouting out “If you support gay marriage, you will burn in hell! It’s an abomination!” The protester was forcibly removed from the Courtroom.
But what will the final decision of the Justices be? Even with the transcript and audio of the proceedings, it’s very difficult to tell. Justices Sotomayer, Kagan, Ginsburg, and Breyer certainly seem to be on our side, Scalia stands in firm opposition as expected, Justice Thomas and Alito remained relatively silent during proceedings. Chief Justice Roberts could be a swing vote, but it’s doubtful, given his conservative leanings. The swing vote may come down to Justice Kennedy, who throughout the history of his time on the Court and as it relates to LGBT issues, has generally been on our side.
Perhaps the more important question shouldn’t be whether or not we win, but how narrowly we will win. Windsor was decided in our favor, but on pretty narrow grounds, granted, it opened the floodgates to states to recognize marriage equality, prior to Windsor only ten states had marriage equality, now thirty-seven states have it, many due to Federal circuit judges citing Windsor as precedent, but Windsor wasn’t the final decision. If the stars align and the gods are smiling, the fight over marriage ends here.
But what if it doesn’t end here? While many are looking to the Windsor case, we would be wise to also remember Hollingsworth v. Perry, the California Prop 8 Case. The Court ultimately decided that the parties didn’t have proper standing to warrant a decision by the Court and the case was remanded back to the Ninth Circuit with instructions to dismiss the appeal for lack of standing.
Granted, in that case, it worked out in our favor, but what if the Court reaches a similar decision here? Not granting a final ruling and simply punting back to the lower courts; it may put many gay and lesbian couples’ marriages at risk because the majority of states have attained marriage equality due to Federal Circuit Courts citing Windsor as precedent. If the Court rules to punt this case, we may be fighting this one fight for another few years.
The bottom line is the time for legal theory has come and gone, if the Court merely wanted to “uphold the will of the people” as Mr. Bursch asked them to do, they could have done that months ago by denying certiorari to the Petitioners. It would have taken only four justices to do that. Instead, the fate of hundreds of thousands of families now hangs in the balance, real flesh and blood families. Not only that, but in light of the Windsor ruling and subsequent lower Federal rulings, states around the country have adjusted their tax codes and paperwork to meet the courts’ decisions. To throw all that away and reverse the course would be disastrous, not only would the tax codes and paperwork have to be completely reset, but it would be the first time in recorded history that an entire class of people would have their families torn apart by a Supreme Court ruling. Such a disaster would be a giant shit stain on the Roberts Court and all the bleach of press releases and explanations couldn’t lift that stain a lick.
So what’s it gonna be your Honors? Are you gonna rule on the right side of history or are you going to piss all over the front of your robes in front of the whole damn country?
To be continued…