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Lawyers for same-sex couples challenging marriage bans in Supreme Court submit proposal for dividing argument time

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Lawyers for the same-sex couples challenging marriage bans in Kentucky, Tennessee, Ohio, and Michigan in the Supreme Court have proposed to the Court a way to divide the argument time for their side.

Recall that the Court, in its order granting review in the cases, allowed for 90 minutes of argument time on the question of whether states must issue marriage licenses to same-sex couples (Question 1) and 60 minutes on the question of whether states must recognize same-sex marriages validly performed outside of the state (Question 2.)

That would leave the couples, who are the petitioners in the case, with 45 minutes on the first question, and 30 minutes on the second question.

On Question 1, the proposed argument is: 15 minutes for the plaintiffs in DeBoer v. Snyder, the Michigan case, and 15 minutes for Bourke v. Beshear, one of the Kentucky cases. The Solicitor General has also requested 15 minutes to argue this question on behalf of the United States. (Note: the SG asked for and was given ten minutes to argue in the Prop 8 case.)

On Question 2, the proposed argument is: 15 minutes for the plaintiffs in Tanco v. Haslam, the Tennessee case, and 15 minutes in Obergefell and Henry, the Ohio cases. The Solicitor General didn’t request argument time on this question.

Noting that all of the plaintiffs join in the request, the lawyers write, “Permitting divided argument will ensure that the Court has the benefit of a full and thorough presentation of all of the issues in these cases, including any questions the Court may have regarding the records developed in the individual cases. Allocating argument as proposed above would ensure that the Court has the benefit of hearing from each of the four Petitioner groups (covering all six cases). In light of the critical importance of the issues presented to Petitioners, and similarly situated couples across the Sixth Circuit, divided argument would also ensure greater representation of those individuals.”

The legal teams on these cases include the ACLU, the National Center for Lesbian Rights (NCLR), Gay and Lesbian Advocates and Defenders (GLAD), Lambda Legal, among others. We don’t know which lawyers will argue for the couples: as Buzzfeed reported, they have yet to announce their plans. But the states have made their decision: “On the marriage question, the Michigan Attorney General’s Office has announced that the state’s former solicitor general, John Bursch, will be arguing in defense of state bans on same-sex couples’ marriages. Joe Whalen, the associate solicitor general in the Tennessee Attorney General’s Office, will argue in defense of the recognition bans.”

The cases will be argued on April 28.

Thanks to Equality Case Files for these filings


  • 1. ianbirmingham  |  March 17, 2015 at 12:35 pm

    The thing to watch out for here is that every lawyer wants to have "Argued cases before the Supreme Court" on the resume. Maximizing the opportunities for resume-padding doesn't necessarily result in the best possible presentation to the Supreme Court. On the other hand, being questioned by the Supreme Court is very mentally draining, and there's something to be said for constantly putting in a fresh, energetic new advocate.

  • 2. mjnichol  |  March 17, 2015 at 12:48 pm

    It's not like the oral arguments matter at this point. Every justice has heard and read all the arguments for and against and has already made up his or her mind. This is just a formality at this point.

  • 3. A_Jayne  |  March 17, 2015 at 6:57 pm

    Points presented during oral argument, however, including responses given to questions asked by the Justices, sometimes make their way into the written opinions. Oral argument, for that reason if no other, is worth having. (Plus, the oral arguments are fun and interesting to listen to.)

  • 4. ianbirmingham  |  March 17, 2015 at 7:07 pm

    Oral argument does change the outcome of a significant number of Supreme Court cases. This particular case could very easily go either 6-3 or 5-4 depending on the quality of the oral argument.

  • 5. MichaelGrabow  |  March 18, 2015 at 7:52 am

    I don't think I agree with this. Much like the other side, what could be said that hasn't been said before?

  • 6. ianbirmingham  |  March 18, 2015 at 1:07 pm

    Supreme Court Justices are extremely good at coming up with off-the-wall questions that raise issues nobody has ever publicly considered, and as a lawyer before the Court you are expected to come up with an immediate answer to these difficult questions. Such questions can and do change the outcome of a case (and result in the creation of entirely new legal doctrines). Only the most knowledgeable and well-prepared lawyers can perform well under these difficult circumstances.

    Sometimes a law firm will take the case's main lawyer (the person who has been working the case from the beginning) completely off the case when it reaches the Supreme Court, so that one of the law firm's bigwigs with hardly any knowledge of the case can then argue the case before the Supreme Court (to benefit the bigwig's resume, ego, etc.). This often results in extreme humiliation as nine Justices systematically shred the hapless bozo. Now that the Court is releasing audio transcripts, such shreddings can live forever on the Internet.

  • 7. RemC_Chicago  |  March 17, 2015 at 1:12 pm

    If the arguments by Michigan and Tennessee are anything like what the lawyers from Indiana and Wisconsin put forth at the 7th Circuit, it will be like pouring buckets of water into a sinking boat.

  • 8. mariothinks  |  March 17, 2015 at 1:24 pm

    Brilliantly divided! Btw, it seems like the Kansas case is moving pretty slow, even though Crabtree is in our favor. I saw that the order was pretty intricate even though it was just to deny the motion to halt proceedings. Can anyone provide some input in layman's terms?

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