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Both sides face skepticism from Justices on marriage equality – Part 1

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Associate Justice Anthony Kennedy (AP Photo)
Associate Justice Anthony Kennedy (AP Photo)
The Supreme Court today was filled with hundreds of people waiting to hear the Justices’ thoughts on the issue of same-sex marriage. A line of spectators started before the weekend for a chance to sit in on the Court’s arguments in Obergefell v. Hodges and the three other cases from the Sixth Circuit Court of Appeals.

Among the attendees were Ted Olson, who, along with David Boies, litigated the challenge to California’s Proposition 8, and Roberta Kaplan, who successfully challenged Section 3 of the federal Defense of Marriage Act (DOMA) and won a victory in the Court in United States v. Windsor.

Crowds of people gathered outside to rally for their respective positions on the question.

The mood at the outset was skeptical. Almost right away, Justice Ginsburg asked what the Court should do with Windsor and its discussion of the states deciding the marriage question.

Chief Justice Roberts soon stepped in, suggesting that the states’ argument is that the traditional definition of marriage “will no longer be operable” if same-sex marriage is required across the country. He noted his view that the “fundamental core” of marriage is the opposite sex aspect.

Justice Kennedy, as he’s done in previous cases, didn’t clearly reveal which way he was leaning. He noted that the time between Brown v. Board of Education and Loving v. Virginia was similar to the length of time between 2003’s Lawrence v. Texas and this case. On the other hand, the issue is progressing quickly across the country, he noted.

Justice Alito seemed bothered by any assertion that the bans are based on dislike of gays and lesbians. He said that before 2000, no state or nation had ever adopted same-sex marriage, asking Bonauto if that means every country had animus toward gay people.

Gay and Lesbian Advocates and Defenders (GLAD)’s Mary Bonauto pushed back on some of the Justices’ assertions, pointing out that “times can blind” and arguing that the same-sex couples in these cases deserve equal protection now.

Justice Ginsburg then suggested that marriage itself was “made egalitarian” and many of the restrictions on women have been removed over time. But that led Chief Justice Roberts to suggest that he’s not sure it’s fair to analogize this case to those changes over time impacting women. Eventually this discussion led to a look to pat civilizations and how they treated same-sex couples, until Bonauto responded that she “can’t speak for ancient Greeks.”

Justice Breyer asked why states shouldn’t be allowed to “wait and see”, but his tone suggested it wasn’t an adversarial question. Bonauto said the Fourteenth Amendment imposes core principles that apply across the board, and they should be enforced. She noted that the “wait and see” approach has never been enough, by itself, to justify discrimination.

As her time was winding down, Justice Scalia wondered about religious liberty protections: would ministers be forced to perform same-sex marriages? Would states have a better chance of enacting religious liberty protections if they are allowed to decide the marriage issue for themselves?

Bonauto pointed to the First Amendment, and several Supreme Court decisions, in saying that no minister would ever be forced to perform a same-sex marriage. Justice Sotomayor came to her defense, asking her if any states with anti-discrimination laws that cover gays and lesbians have forced ministers to marry same-sex couples, to which she said they have not.

As Bonauto reserved some time for rebuttal and began to sit down so US Solicitor General Donald Verrilli could take his 15 minutes at the podium, a protester began yelling in the courtroom about homosexuality being wrong and immoral, and how the Court shouldn’t sanction it, among other things. He kept screaming as he was led out of the Court, and could be heard screaming until he left the building. John Becker at Bilerico told this writer that the man could be heard screaming even after he’d been escorted completely out of the building.

When Verrilli began to speak, he was asked about Lawrence v. Texas, which struck down bans on same-sex intimacy. Chief Justice Roberts noted that the Court held the state “may not intrude” into that realm, asking Verrilli if that isn’t the opposite of what’s being sought here.

Verrilli was asked about religious schools and housing for married couples, and he conceded that anti-discrimination laws would apply in that situation. Before he sat down, he told the Justices that the states’ only argument is that “with respect to marriage, they’re not ready.” He said gays and lesbians are equal, and deserve equal protection of the laws.

By the end of the same-sex couples’ arguments on the question of licensing same-sex marriage, it appeared the Justices were quite skeptical of who would win on that question. It also appeared that even among those who would strike the bans, there’s not much consensus on which path to take: some Justices suggested that equal protection would be easier and that the ban affects people based on sexual orientation, others seemed to believe marriage is a fundamental right, and Chief Justice Roberts, who seemed mostly skeptical of the same-sex couples’ arguments, would ask the state’s lawyer a question that could lead to a different view.

The high point of the presentation by John Bursch on behalf of the states, arguing for banning licensing of same-sex marriage, was when Chief Justice Roberts asked “why isn’t this sex discrimination?” Roberts seemed to suggest that the ban classifies on the basis of sex on its face, but, in a hypothetical, pointed out that it would affect a man who wants to marry a man but can’t simply because of his sex.

Most of the early questions during Bursch’s time involved kind of an obscure question: just what evidence exactly is a state required to put forward to justify itself when only rational basis, the most lenient form of judicial scrutiny, is required? Several of the more conservative-leaning Justices argued that the state isn’t required to show how allowing opposite-sex marriage harms same-sex marriage. Justice Scalia especially didn’t seem like he believed it was important to their argument.

But Justice Kagan suggested that a reason for the exclusion of same-sex couples from marriage is needed, prompting Bursch to argue that it’s simply not an exclusion: his position is that marriage as it was created was made for a man and a woman because it addressed specific social problems that only opposite-sex couples face. Further, he argued, there are different outcomes with an institution based on procreation versus one based only on love and affection.

Justices Kagan and Breyer pressed him: Can states ban childless marriage? Why are same-sex couples excluded from a right that’s regarded to be fundamental?

That second question, raised by Justice Breyer, led to a dispute over just what the couples are asking for. Justice Breyer articulated their position as he saw it: the couples are seeking equal protection and access to an existing fundamental right. Bursch argued that Windsor suggested opposite-sex marriage is what’s fundamental about the right to marry.

Justice Kagan pointed out that the “right to marry” is as specific as the Court has been on marriage as a fundamental right, and Justice Sotomayor said the prisoner case Turner allowed inmates to marry even when they couldn’t procreate.

Interestingly, there wasn’t much discussion of the question of whether laws affecting gays and lesbians should be subjected to heightened judicial scrutiny under the Equal Protection Clause. The lack of discussion could mean the Court is comfortable with its current approach.

Bonauto was asked no questions on her rebuttal.


  • 1. RnL2008  |  April 28, 2015 at 12:54 pm

    Frankly after listening to question 1 and now listening to question 2 and my take on this is it could go our way, but it may be a narrow win……..or SCOTUS could split the ruling, but all I see happening there is that like for Texas, they will continue to stand pat on their right to continue their discrimination and fight the federal recognition part as well as the recognition of a marriage from another state.

    The chaos SCOTUS would create by ANY ruling NOT in our favor would just be so CATASTROPHIC that it would take decades to clean up.

  • 2. RQO  |  April 28, 2015 at 3:42 pm

    I agree. I think they just don't get it. One would think these people might have taken the time to have a heart-to-heart talk with a gay, lesbian or transgendered person before today. Perhaps they have, and don't care.
    As to chaos – you are right. Upholding the 6th CA decision will unleash the hounds of conservative (and ugly) backlash. It will be like the Hayes/Tilden election compromise which effectively demolished the Reconstruction Act.

  • 3. RnL2008  |  April 28, 2015 at 4:00 pm

    Oh and DON'T ya know that the States who CAN'T undo what the ruling was in their own circuit courts will be doing EVERYTHING possible to nullify the hundreds or thousands of legal marriages that have been taking place since before October of 2014………and then these cases will CONTINUE to be placed in front of SCOTUS who truly DON'T want to deal with this particular issue ANYMORE than they ALREADY have!!!

  • 4. SethInMaryland  |  April 28, 2015 at 1:04 pm

    It's going to be narrow for sure but did seem like kennedy is the5th vote , his conversation with state att had venom in it. He usedwords like dignity like he did in windsor, he also get into somewhat of arguement with stateatt when the when he said opposite sex parents raise children better slaming as false

  • 5. tigris26  |  April 28, 2015 at 2:32 pm

    Absolutely. Yeah, I was pleased to hear Kennedy still going strong in his passion for the dignity of same-sex couples and their children. He certainly piled it onto the State Attorney like the liberal Justices were doing.

    But yes, a narrow ruling is looking very likely…

  • 6. 1grod  |  April 28, 2015 at 1:08 pm

    Question 2 may well save Question 1. Our lawyer in 2 was more comfortably assertive in addressing the judges' questions than either his opponent in Question 1 or 2 and his sister in Question 1. IMO Verrilli was equally comfortable in responding to the questions of the Court. One can infer by my statement above that Oral Argument is just that. It is significantly more about addressing questions than it is about presenting your case. The real skill is linking your points directly to the questions being asked. IMO one could not take seriously many of the judges' questions to Mary Bonauto. Why? If the bench did not realize before, in a mobile nation like America, with 37 states now equality states, they must realize now their questions were undividable.

  • 7. Mike_Baltimore  |  April 28, 2015 at 3:29 pm

    . . . mobile nation. . . ."

    I can attest to that as I've lived in Indiana, Maryland and Virginia (and that was before I was 30 years old). In many countries, it is can be comparatively rare for people to live outside the village, town or city in which they were born.

    I'm sure there are many others in the US who have lived in more than three states. For example, my partner was born in Texas, lived many years in West Germany, then Virginia, then again in West Germany, again in Virginia, then Maryland. And that's not counting the states and countries where he lived while in training for the Navy, and posts he was assigned to in the Navy (Athens, Greece, for example).

  • 8. sfbob  |  April 28, 2015 at 3:49 pm

    Mobility is not even that much of a novelty in the United States. During the 19th Century people moved from East to West (and occasionally in the other direction). In the 20th Century even more so. Even my relatively poor maternal grandparents managed to relocate from New York City to Pittsburgh and then back (before my mom was even born) and then to Miami…and back again to New York before WWII broke out. I would never consider myself extremely mobile but I lived in New York and Maryland (mostly the former) as a child and have since moved twice–first to DC and then to California. My partner has born in the UK (though his parents were and are American citizens). He's younger than me and has lived in more states than I have–Louisiana, Oklahoma, Montana, Massachusetts and California. I actually know very few people who have spent their entire lives living in one state and even many who've stayed in one state have moved around within that state a good deal (anyone born in Stockton, CA can attest that it's one of those places you want to escape from as soon as possible, especially if you're gay or lesbian. Ditto for Bakersfield.).

  • 9. Waxr  |  April 29, 2015 at 10:08 am

    "Question 2 may well save Question 1."

    Not that Question 1 needs saving, but a conservative justice would find neither a "yes" or "no" vote satisfactory. If states do not have to recognize same-sex marriages performed in other states, it would conflict with the "full faith" cause and with the Court recognized right for citizens to travel from state to state.

    If the states are required to recognize out of state marriages, then their own citizens need only to go to another state to be married, at it will be recognized in their home state.

    The only way out of the conflict would be to vote "yes" on question 1.

  • 10. tigris26  |  April 29, 2015 at 7:03 am

    "Question 2 may well save Question 1"

    This is my thought exactly. What "better" result would it provide the Justices by saying YES to Q2 and not Q1? The States would still be recognizing same-sex marriages… I mean how would recognizing out-of-state marriages be so much different from forcing the States to recognize marriages performed in their own?

    This point was brought up by Judge Williams in the 7th CA case with Indiana and Wisconsin. Judge Williams asked the state attorney of Wisconsin, "How is validating out-of-state marriage such a distinction from recognizing them within the state?" (I'm paraphrasing)

    I'm wondering if this thought has crossed Kennedy's mind and that is why he didn't say practically anything for the Q2 arguments. Why would you say NO to Q1 but YES to Q2? Giving a firm YES to Q1 would be much less of a mess than just a YES on Q2.

    Thankfully, the other Justices (including the more conservative ones) also did not seem to like the idea of taking that route to a middle-ground.

  • 11. 1grod  |  April 29, 2015 at 10:20 am

    Tigris: When the Supreme Court of New Mexico learnt that same gender citizens frequently had left home and returned married, and those marriages were recognized; they scoffed at their being a ban within the state. I would think a State's Supreme Court would not permit recognition of out of state, and non-celebration/ recognition with-in state: it being offensive to the State constitutional equal protection and due process guarantees. Perhaps I not giving enough weight to ssm ban constitutional amendments.

  • 12. davepCA  |  April 28, 2015 at 1:08 pm

    While listening to the oral arguments was certainly interesting and, at times, entertaining, we would do well to remember that the questions and asked the answers given during oral arguments isn't something that should be relied upon to predict the ruling either way. The contents of the briefs and the previous decisions of the Supreme Court as well as lower courts are a better indicator. And when I look to those things, I am very confident the Supreme Court will rule in our favor, for all of the same reasons that all of those various stated courts and federal courts have been doing so. We got this.

  • 13. RnL2008  |  April 28, 2015 at 1:27 pm

    I totally agree with you. If SCOTUS was going to rule against Marriage Equality, they would have granted cert in my opinion back in October……..but they DIDN'T and I seriously doubt they will now.

    Now, we wait and speculate as the anti-gay crowd will certainly be doing.

  • 14. SethInMaryland  |  April 28, 2015 at 1:20 pm

    Verilli was stomping the yard for sure, he was ready for everything

  • 15. NorthernAspect  |  April 29, 2015 at 2:41 am

    Yes, a better performance than his during Windsor oral arguments.

  • 16. JayJonson  |  April 28, 2015 at 1:20 pm

    Having listened to both tapes, I am fairly confident that we will win. I was worried by the live blogging reports, but many of the questions posed by the Justices were simply probing the arguments, and I don't think gave anything away. Mary Bonauto did a good job, but got flustered by some questions–questions that actually seemed easy to me, or at least so obvious that she should have had quikcer responses to–but recovered. Her rebuttal was very good.

    Donald Verilli did a very good job in presenting the DoJ case. He may indeed lead Kennedy to an equal protection ruling, which I think is where Kennedy intends to go in any case.

    The Michigan attorney was glib, but got caught up in a number of key places. I was impressed at how aggressively he was questioned by Breyer, Kagan, Sotomayor, and Kennedy.

    The argument re recognition lacked some of the passion of the first argument, but that is probably because the whole question will be made moot if the Windsor majority hangs together and rules in our favor on question one. Hallward-Driemeyer was especially good in his summation, where he demonstrated the real life consequences of the question. The Kentucky attorney floundered under some withering questions by Breyer, Sotomayor, and Kagan.

    I am still convinced that the ruling will be 5-4, with Kennedy writing an eloquent decision based on equal rights, and emphasizing the harm done to the children of gay parents: in other words, Windsor redux.

    I would not be surprised if the RATS may indeed attempt a split-the-baby decision, but I think it will be opposed by the Windsor majority. The result may be a 5-4 decision that holds that the Fourteenth Amendment requires that same-sex couples be allowed to marry, but that at least two of the minority will write opinions dissenting on that question, but concurring that the Fourteenth Amendment requires that states recognize valid same-sex marriages from other states.

  • 17. wes228  |  April 28, 2015 at 2:12 pm

    LOLLL @ "RATS"…perfect acronym!

  • 18. VIRick  |  April 28, 2015 at 2:59 pm

    "The result may be a 5-4 decision that holds that the Fourteenth Amendment requires that same-sex couples be allowed to marry, but that at least two of the minority will write opinions dissenting on that question, but concurring that the Fourteenth Amendment requires that states recognize valid same-sex marriages from other states."

    Jay, that's an excellent observation, with the justices ruling, in effect, 5-4 on Question #1, and 7-2 on Question #2, thereby providing us with an over-all ruling of 5-2-2, with two of the RATS jumping ship, dissenting in part and concurring in part.

  • 19. DrPatrick1  |  April 28, 2015 at 6:40 pm

    5/4 on question 1, 6/3 on 2 with Roberts writing separately that he dissents with the majority and agrees with Scalia's dissent on question 1, but would hold separately that a state would have to show in each instance why it would be necessary to not accept a valid foreign (other state) marriage. He would suggest that certain circumstances, like presumption of paternity, may be justified to not acknowledge the marriage, but in other circumstances, such as a death certificate, there it would seem a much harder burden to prove an important state interest in ignoring the valid marriage.

    However, this may be a dream. After all, how could the Feds ignore the marriage if the other states can't? Remember, this was Roberts opinion in Windsor.

  • 20. Raga  |  April 28, 2015 at 1:21 pm

    I got the feeling that Kennedy really really didn't want to decide this and was perhaps uncomfortable caught between redefining the fundamental marriage institution that has been man-woman for "millennia" and denying same-sex couples their dignity and imposing harm on their children. He didn't tip his hand today and could go either way on Question 1, but I'm fairly certain he will rule in our favor on Question 2. On Question 1, when push comes to shove, I hope he does the right thing and rules for us – I did detect more passion in his tone when he defended us. Oh, what I'd give to be a fly on the wall when the Justices convene for their private conference later this week to discuss/negotiate/bargain and take the initial votes!

  • 21. Zack12  |  April 28, 2015 at 1:24 pm

    I think he will rule in our favor on both counts.
    He was tough on our side but even more so on the anti-gay side.
    Anyone who could listen to the questions he asked them and they he is a yes vote is fooling themselves.

  • 22. SethInMaryland  |  April 28, 2015 at 1:28 pm

    I think kennedy still thought it was too soon to for court to rule on this but i do think he will our way , he had venom toward the state att in some of words he used

  • 23. sfbob  |  April 28, 2015 at 3:52 pm

    Some of his statements might make it seem as though he were worried about timing but he did note that the time between Lawrence and Obergefell is about the same as the timing between Brown vs Board of Education and Loving vs Virginia. If I were going to read tea leaves when it comes to Kennedy's pronouncements from the bench I'd suggest that that last statement is far more important than the one about "millennia."

  • 24. Eric  |  April 28, 2015 at 2:08 pm

    I imagine your scenario would play out like the Dred Scott decision. Slaves were still slaves in free states.

  • 25. DrPatrick1  |  April 28, 2015 at 6:45 pm

    Eric, I think you are spot on! What a terrible world this would be in such a case.

  • 26. wes228  |  April 28, 2015 at 2:13 pm

    A huge mess…it would trigger another line of lawsuits like Caspar v. Snyder with several of these states, with their marriage bans restored, attempting to nullify previously existing marriages under the guise that their marriage bans were always constitutional and thus validly in force.

  • 27. sglaser2  |  April 28, 2015 at 3:19 pm

    Wouldn't it also prompt cases where an employer (e.g. Federal Govt, Parks Dept) subjects a married employee to a "taking" when they transfer them to a non-SSM state? Since marriage is a fundamental right (per Windsor), some job transfers would have the effect of forcing someone to divorce. I can't see that being workable.

  • 28. Rick55845  |  April 28, 2015 at 3:38 pm

    It would effectively divide the United States into two different countries, one where everyone's fundamental right to marriage was respected, and one where only opposite-sex couple's fundamental rights were respected.

    I've already decided that if we don't get nationwide full ME at the end of this term, my husband and I are going to emigrate from Texas to the part of the country where our fundamental right to marriage is respected.

  • 29. JayJonson  |  April 28, 2015 at 4:13 pm

    The spectre of a division into two countries was exactly what Solicitor General Verilli warned about, saying that it would hearken to the days before Loving when interracial couples had to think about where they could travel.

  • 30. Eric  |  April 28, 2015 at 4:44 pm

    I've similarly wondered if one could legally claim that a California company sending an LGBT employee to a non-equality state for work is sending that employee to a hostile work environment under California law.

  • 31. sglaser2  |  April 28, 2015 at 5:36 pm

    After I wrote this, I noticed in the question 2 argument, our side made this point. Quoting from the EOT Summary Part II:

    "On rebuttal, Hallward-Driemeyer suggested that any gay or lesbian person in the military will eventually be stationed in a state that refuses to recognize his or her marriage."

    He used the military as the example. That argument could go both ways (1) the country generally likes to support our soldiers or (2) soldiers get deployed in lots of hostile places so it kinda comes with the territory.

  • 32. Eric  |  April 28, 2015 at 5:52 pm

    I'm not sure why the future tense was used. Troops are currently stationed in anti-gay states.

  • 33. Sneaks  |  April 29, 2015 at 9:24 am

    While troops can be stationed in hostile places, I don't think anyone could say that that
    place should be their own country.

  • 34. sfbob  |  April 29, 2015 at 10:05 am

    "Hostile work environment" is a very specific concept. It pertains to a cause under which an employee can bring a claim for action. One could well argue that being ordered to work in a workplace in a state where one's primary relationship isn't recognized constitutes a hostile work environment. I don't know if the courts would buy it buy the argument necessarily but if you didn't want your job to be transferred from, say, California to Mississippi, and your employer wasn't willing to accommodate you, it would be a sensible tactic to use.

  • 35. SteveThomas1  |  April 28, 2015 at 2:22 pm

    I realize that I'm in a pretty small minority in believing that Justice Kennedy was prepared to decide Hollingsworth on the merits and would have held state bans on same-sex marriage to be unconstitutional two years ago. I believe that Justice Ginsberg was the architect on the left for punting the case to today, and it required her to join the Chief Justice's standing opinion (which I don't believe she actually agreed with substantively).

    I've long wondered where Justice Kennedy's evident sympathy for LGBT folks comes from. My hypothesis is that some close family member or friend is or was gay, but in all of the gay rights opinions he has written what most clearly shines out is his concern for the dignity of LGBT individuals.

    As to the basis on which he will rule, I think it will be much like Windsor, a sort of mash-up of equal protection and substantive due process tropes, without any clear signal about the standard of review.

    Of course, I could be wildly wrong — we won't know until late June.

  • 36. Zack12  |  April 28, 2015 at 2:24 pm

    HIs mentor was gay, that is the likely connection.

  • 37. NetAmigo  |  April 28, 2015 at 2:55 pm

    Here's an article discussing Kennedy's gay connection from his past.

  • 38. SteveThomas1  |  April 28, 2015 at 3:12 pm


  • 39. bythesea66  |  April 28, 2015 at 4:41 pm

    You may be in the minority here, but I agree with your take.

  • 40. DrPatrick1  |  April 28, 2015 at 6:51 pm

    In Arizona vs official English (I'm botching the real name in the case) Ginsberg expressed concern with granting proponents of a ballot initiative article III standing. This is why the 9th circuit asked CA SC if proponents can substitute for the state in asserting the state's interest, thus being a stand in for the state which clearly has article III standing. They were trying to persuade he, which they ultimately failed to do. Her vote in Prop 8 was not at all at odds with her previous position.

  • 41. SteveThomas1  |  April 28, 2015 at 7:10 pm

    Arizonans for Official English v. Arizona, 520 U.S. 43 (1996). As I recall, the Court never reached the question of whether initiative proponents had Article III standing, but dismissed the suit as moot because the initial plaintiff had left state employment before the appeal.

    Justice Ginsberg seems to have a general preference to classify many standing doctrines not as Article III cases (where lack of standing strips the courts entirely of power to hear a case) but as claims-processing rules.

  • 42. palerobber  |  April 28, 2015 at 1:31 pm

    from the transcripts:

    MR. BURSCH: […] in Windsor, this Court said that the limitation of marriage to opposite sex couples has always been thought to be fundamental.
    JUSTICE BREYER: […] I'm surprised if this Court actually wrote that, but but if it did write that and you can immediately call that page to mind, I'll doubly look at it. And I just doubt it's here, but I'll look at it.
    MR. BURSCH: Yeah. You will find in Windsor that the Court majority said it's the limitation of marriage to opposite sex couples that has always been thought fundamental.

    Bursch used nearly identical language both times he made this assertion about Windsor, so he clearly had careful planned what he was going to say here. how accurate and honest is his claim?

  • 43. sfbob  |  April 28, 2015 at 1:37 pm

    The Court has already ruled that just because something "has always been thought" that doesn't make it a sound argument for continuing to so think. And I strongly suspect that Bursch is intentionally editing a statement to that effect in order to leave out that very important caveat. Just as those states which have cited Windsor in supporting the marriage bans have left out the all-important phrase "subject to certain constitutional guarantees" when asserting the right of the state to control marriage laws.

  • 44. 1grod  |  April 28, 2015 at 1:44 pm

    Windsor: For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given
    recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other.
    "The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion." p 14 Justice Breyer better understands context than does John Bursch

  • 45. 1grod  |  April 29, 2015 at 10:42 am

    Bursch must have known that he was caught out when Justice Breyer asked for an exact reference and he could or chose not to provide it.

  • 46. josejoram  |  May 4, 2015 at 12:22 pm

    Wow what AN awful interpretations by Bursch.

  • 47. palerobber  |  April 28, 2015 at 1:45 pm

    from Winsdor, Section III:

    The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to beseen in New York and certain other States as an unjust exclusion.

    this part of the opinion is just laying out the history for background. now i need to go back and see how exactly Bursch is trying to employ this. right off i see he's changed "had been" (past tense) to "has always been" (past and present).

  • 48. palerobber  |  April 28, 2015 at 2:08 pm

    after reading the transcript at greater length, i think i understand now what Bursch was about.

    his point — and he obviously thinks it's a real winner because he fights across several overlapping questions to get it out — is that Windsor definitively settled the "new fundament right / existing fundamental right" question in the anti-marriage camp's favor.

    he pulls a throw-away line from Windsor intended to provide historical context on past prejudices and pretends it's an authoritative finding that the "fundamental right to marry" only applies to heteros.

  • 49. David_Midvale_UT  |  April 28, 2015 at 2:39 pm

    Slimy at best if not outright deceptive.

  • 50. JayJonson  |  April 28, 2015 at 3:06 pm

    That's probably why the justices gave him such a hard time. He was way out of his league.

  • 51. JayJonson  |  April 28, 2015 at 1:56 pm

    I have just read the analyses of the arguments by Ari Ezra Waldman at Towleroad. They are very interesting. He reaches the same conclusions that most of us here have reached. He thinks that the attorneys for Michigan and Kentucky were both unable to make reasonable cases for their positions, but that the attorney for Kentucky was especially bad, and that the Justices were basically schooling him about elementary points of law.

    Waldman made an interesting point about the fact that Justice Kennedy asked absolutely no questions re argument 2: Waldman believes Kennedy's lack of interest in question 2 is a sign that he knows question 2 is irrelevant since he has 5 votes for a decision on question 1.

  • 52. Zack12  |  April 28, 2015 at 2:05 pm

    About the only thing Kennedy mentioned in argument two was the length of time between Lawrence and the current cases being the same as Brown and Loving, the same point he made earlier.
    That bodes well for us.

  • 53. Rick55845  |  April 28, 2015 at 2:36 pm

    Why is the length of time between Brown and Loving or between Lawrence and Obergefell significant? It wouldn't seem to have anything to do with constitutionality of the questions being considered. I don't understand why he made that comment.

    OK, I see that Ari Ezra Waldman over on Towelroad says this:

    "Justice Kennedy made the most telling point: the time lapse between Obergefell and Lawrence, the 2003 case that declared unconstitutional state laws that criminalized sodomy, is roughly the same time lapse between Brown v. Board of Education, which stated that segregation is unconstitutional, and Loving v. Virginia, the aptly named case that ended bans on interracial marriage. Justice Kennedy was nodding toward a gradual approach to civil rights: when the Court decided Brown, the country wasn't also ready for an end to all racial discrimination practices, particularly in marriage, and when the Court decided Lawrence, the country may have been ready to let gays love each other in the privacy of their own homes, but they weren't ready for gays marrying. Now, the theory goes, they might be."

    It's still not clear to me what makes that a "telling point", or why anyone would consider it persuasive, indicative of how Kennedy might rule, or even very interesting.

  • 54. sfbob  |  April 28, 2015 at 4:04 pm

    Basically Waldman sees Kennedy as hinting that just as Brown vs Board of Education set the stage for Loving vs Virginia, Lawrence set the state for a pro-marriage equality ruling now.

  • 55. tigris26  |  April 28, 2015 at 4:12 pm

    I think it ties in with what Kennedy says at the beginning of that statement about heterosexual marriage being around for a "millennia" and asking whether changing that fundamental right to include same-sex couples would be too rapid of a change? But then that's where Kennedy talks about how the similar amount of time in between Brown v. Board and Loving v. Virginia that there's been between Lawrence v. Texas and Obergefell.

    Basically, the Supreme Court was not ready to make a sweeping change toward full racial equality at the time of Brown v. Board of Education. But 12 years later, when Loving v. Virginia came around, the Court felt it could make that change. No one would argue nowadays that the Court moved too far too fast when it ruled on Loving, yet that was ONLY 13 years later after Brown.

    The same amount of years have passed between Lawrence and Obergefell. While back in 2003 with Lawrence, the Court was not inclined to rule on marriage equality…12 years later (today), it's a different story. Even though such a short time has passed since Lawrence, significant change has happened in society nonetheless and can encourage the Court to rule for marriage equality this time.

    So, with Kennedy keeping this in mind, this gives some of us hope that he won't think ruling in favor of marriage equality would be moving too far too fast.

    I hope that made sense…I know my response was a bit long.

  • 56. Rick55845  |  April 28, 2015 at 4:34 pm

    Thanks for your thoughts on this. I suppose to my way of thinking, 12 years is hardly significant in the context of "millenia". It's two orders of magnitude less significant, in fact. But if that helps Kennedy rule against what is obviously blatant and unjustified discrimination against us, I'll be very satisfied.

  • 57. palerobber  |  April 28, 2015 at 4:21 pm

    i think it's telling because Kennedy is acknowledging that Supreme Court decisions sometimes factor in politics and public opinion, and because he's saying that while it feels to him like this gay marriage thing is advancing awfully fast, he reminds himself it's not moving any faster than the civil rights movement did at its height.

  • 58. A_Jayne  |  April 28, 2015 at 4:25 pm

    I hadn't considered his statement from that angle – you could very well be correct.

  • 59. DrPatrick1  |  April 28, 2015 at 7:05 pm

    This is where Kennedy and Scalia part ways. Scalia posits that the original meaning of the words when they were adopted into the constitution limits the meaning of those words, such that as homosexuality as a construct was much different in the 18th and 19th centuries, there can be no constitutional protection for what the gays today want of their lives.

    A majority of the court, the Windsor majority, believes that as our human understanding of humanity changes, what is meant by the equality called for by the 14th amendment must also change. Kennedy mentioned the time frame as an indication that just as our understanding of racial equality evolved enough from Brown to Loving, it seems that our understanding of equality for the gays has had enough time.

    Strictly speaking, the time should be of no significance, it was just as wrong to ban interracial marriage after Loving as before, at least since the 14th amendment was adopted. But this type of view appeals to Kennedy, who certainly will be writing for the majority in this case. Ginsberg has also expressed concern for the timing of judicial rulings which expand our understanding of equality.

  • 60. RnL2008  |  April 28, 2015 at 2:12 pm

    From our local hate group NOM believes that the Justices are going to rule in their favor……here is what they claim to be hearing from their lawyer:

  • 61. flyerguy77  |  April 28, 2015 at 2:30 pm

    I believe 75% we will win this case. I like all of Justice's questions. I'm listening to Q 1's audio..

  • 62. David_Midvale_UT  |  April 28, 2015 at 2:49 pm

    Irrational prejudice and willful self-deception run strong in that group, just as it still does in the people who created it.

  • 63. RnL2008  |  April 28, 2015 at 3:45 pm

    So true and they will spin this day and what they believe the Justices asked as a positive ruling in their favor……but just wait until the ruling/rulings DON'T go their way and they will be screaming about term limits for those damn activist Justices!!!

  • 64. galen697  |  April 28, 2015 at 3:10 pm

    I'll apologize in advance for my pessimism here. After listening to a good chunk of the audio and reading through the transcript of the first portion (as well as following several livestreams earlier this morning), I've got mixed feelings about a potential outcome for us here.

    I was hopeful that Roberts could be persuaded to sign on to our side, but he effectively slammed the door on that in the first five minutes when he said that a ruling in our favor would end the the debate on the topic. That seems to square him with Sutton's viewpoint. He did come back around a little bit with his comments on potential sex discrimination, but I'm not sure what to really take away from that.

    I was ecstatic to hear Kagan's line of questioning about whether a state's potential policy of only allowing couples that intend to bear children (or have already done so) to marry would be unconstitutional, because I don't think this argument gets raised nearly enough and it really tears apart the entire "purpose of marriage is for procreation" argument that the other side likes to make. Hearing that was probably the best part of the day for me.

    And then there was Kennedy, who still seems to want to have his cake and eat it too. On the one hand, I was encouraged by his apparent skepticism of many of Michigan's arguments, but it still sounds like the "millenia of tradition" argument is going to be a high hurdle for him to clear.

    I'm concerned that we heard practically nothing about the real injuries being endured on a daily basis by the petitioners until the very end of the US's argument. Yes, that was the crux of many of the briefs, but it would have done the justices good to hear that in an oral argument setting. I'm also concerned that there was seemingly no discussion of why the Court declined to grant cert in any of the other jurisdictions, or the potential legal chaos that would be unleashed if the Court upheld the 6th's ruling. That's what's really got me scratching my head, and I'm having a hard time reconciling the Court's actions (or inactions) in those cases with what we heard today.

    In the end, I'm not confident that we're going to get the sort of sweeping, Loving-style ruling that we've been told to expect for months now, but will instead get a narrower ruling instead. Best case- Kennedy finally mans up and says "Yes, marriage is a fundamental right that can't be restricted for reasons X, Y and Z", perhaps adopting Roberts' sex discrimination argument that would pull the chief justice in as a 6th "Yes" vote. Worst case- Kennedy just can't bring himself to move past that "millenia" perspective, and Roberts convinces him to vote against us on the first question but for us on the second question as a very weak compromise that resolves nothing and only ensures more years of legal battles and suffering for people across the country in the meantime.

    It's times like this that I wish Andrew Sullivan was still blogging. He always had the most reassuring perspective on things like this.

  • 65. RnL2008  |  April 28, 2015 at 3:48 pm

    To take much from the oral arguments will do NOTHING but cause you ulcers and sleepless nights.

    My suggestion is to continue to process what you heard, ask questions and know that SCOTUS is well aware of the mess that will be created if they rule against us and uphold the ruling by the 6th……..and I seriously DON'T believe they will let that happen.

    If marriage is TRULY a Fundamental right, then there is NO way the States can infringe on that fundamental right WITHOUT good cause and they have NONE!!!

  • 66. DrPatrick1  |  April 28, 2015 at 7:19 pm

    For those who participate, not Thomas, Oral arguments serve 2 purposes. First, to further flush out their own thoughts. An example was when Sotomayor came in to save Bonauto from Scalia with his artificial concerns about the clergy and forced marriages. She asked simple questions she knew the answer to to dismiss Scalia's crazy. This is probably only a minor function, except for Scalia who so so loves to hear his own voice ( incidentally, did anyone catch just how often Scalia interrupted Sotomayor?). Second, they take this opportunity to play Devil's advocate. Thus, they flush out the opposing view in order to better take it down in their written opinion. They try to get those who they think will disagree with them to hear someone other than themselves disagree with them. Kennedy really likes to do this, as he did this often in the other GLBT cases.

  • 67. tigris26  |  April 28, 2015 at 3:18 pm

    My favorite quote from Justice Kennedy came from this exchange between him and Mr. Bursch:

    [JUSTICE KENNEDY: But that…that assumes that same-sex couples could not have the more noble purpose, and that's the whole point. Same-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.

    MR. BURSCH: And Justice…

    JUSTICE KENNEDY: And…and but you argued in your brief, and Justice Kagan was quite correct to say that you're saying that this conventional marriage. That was the argument you in your brief as I understood it.]

    I don't know if anyone else caught this but there was a genuine emotion in Kennedy's voice when he talks about same-sex couples understanding the "nobility and sacredness of the marriage". I wish I could have seen his facial expression as well. Certainly, as stated by others in comments above, Kennedy expressed more "passion" in the tough questions towards the state attorney.

  • 68. SteveThomas1  |  April 28, 2015 at 3:36 pm

    I suspect that on an intellectual level, Justice Kennedy is indeed troubled by the notion that marriage is being "redefined" after millennia of more or less agreement that it's a heterosexual institution. But I think when he comes to voting in conference and to (probably) writing an opinion, what he will see are not intellectual doubts, but a concrete gay couple, looking forward to the joys and responsibilities of a life together — and he will imagine how being told by the US Supreme Court that their love was not good enough would affect them. And he won't be able to stomach being complicit in delivering such a message.

    Since October, the Supreme Court has been consistently denying emergency requests for stays in SSM cases where lower courts required states to give licenses to same-sex couples. The immediate effect of those denials has been the marriages of a fair number of same-sex couples in a bunch of states. I continue to think that Justice Kennedy would not have participated in those denials of stays if he hadn't already concluded that marriage equality was the ultimate result. Taking those marriages back would be unimaginably cruel.

  • 69. RnL2008  |  April 28, 2015 at 3:56 pm

    I would TOTALLY concur with your assessment. If marriage was truly just a HETEROSEXUAL institution then NONE of these cases would have ever come to be and it is AGAINST our Constitution to form laws that EXPLICITLY deny a right to a minority group of individuals as has been ruled on like marriage has…….NO where in the previous rulings regarding one's right to marry has SCOTUS ever claimed it was STRICTLY between a man and a woman……….and if marriage was JUST about raising and having children, then we would DENY the elderly the right to marry and we would deny prison inmates the right to marry and this is where the ANTI-GAY marriage foes fall flat on their faces…..and if it was SOLELY about the children, as some claim…..then why are there so many children in need of homes that will provide some stability for them because it was OBVIOUS that they biological parents COULDN'T handle the job!!!

  • 70. josejoram  |  April 30, 2015 at 11:01 am

    It's for this very reason that I do not comprehend the rationale behind almost zero debate on the history of discrimination against gays and lesbians as motivated by animus. I did not read anything about bans emerging only after some same sex couples started to demand protections. I am confused on this point.

  • 71. 1grod  |  April 28, 2015 at 3:55 pm

    Bursch May have talked himself out of Victory

  • 72. 1grod  |  April 28, 2015 at 5:42 pm

    Attorney General Loretta Lynch's statement on equality

  • 73. mu2  |  April 28, 2015 at 4:05 pm

    I keep reminding myself that he obviously MUST be aware that many opposite-gender couples, married or not, can't procreate either without intervention from the medical and scientific disciplines that have figured out ways around many innate biological conditions that preclude making babies, nu?

  • 74. Eric  |  April 28, 2015 at 4:48 pm

    He's aware, several of those types of couples are represented on the court.

  • 75. mu2  |  April 28, 2015 at 5:03 pm

    That's nice. I suspect Thomas is not one of them, since he has no dick.

  • 76. mu2  |  April 28, 2015 at 3:55 pm

    Okay this is pretty much off topic, but has anyone else noticed this pic of Brian Brown? I mean, come on…either he eats lots of bananas, or………………something else.

  • 77. sfbob  |  April 28, 2015 at 4:59 pm

    My partner has suggested that we have been going about this whole thing all wrong. Rather than waste all the time and money with attorneys we should have pursued marriage equality before Judge Judy. It would be resolved in 30 minutes and she doesn't take b.s. from anyone.

  • 78. ianbirmingham  |  April 28, 2015 at 6:49 pm

    In this thread and the next one, I'm going to post my excerpts of what I think to be the important parts of the two transcripts. I'll come back later to discuss the significance of specific points.

    Roberts (page 5): … The argument on the other side is that they're seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable. … My question is, you're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship.

    Kennedy (page 7): … the word that keeps coming back to me in this case is — is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it's been — it was about — about the same time between Brown and Loving as between Lawrence and this case. It's about 10 years. … This definition has been with us for millennia. And it – it's very difficult for the Court to say, oh, well, we — we know better.

    Bonauto: Well, I don't think this is a question of the Court knowing better. When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. And in this — in the last century, immigration exclusions, the place of gay people in public employment and Federal service, these are all things that have been contested and — and you can — you can say 10 years of marriage for Massachusetts, but it's also in the 1970s that the Baker case from Minnesota reached this Court, and that's over 40 years ago. And it was over 20 years ago that the Hawaii Supreme Court seemed to indicate that it would rule in favor of marriage, and the American people have been debating and discussing this. It has been exhaustively aired …

    Bonauto (page 9): Your Honor, my position is that times can blind. And if you think about the example of sex discrimination and what it — again, I assume it was protected by the Fourteenth Amendment, but it took over 100 years for this Court to recognize that a sex classification contravened the Constitution. But then in short order, between Reed and Craig v. Boren, we went from a rational-basis approach to — to heightened scrutiny, acknowledging that this kind of discrimination is invidious. And in the same vein here, we have a foundation of Romer, of Lawrence, of Windsor —

    Roberts (page 11): Coverture was not — coverture was not a universal aspect of marriage around — around the world. And there again, if you look at the basic definition, it is between a man and a woman. It does not always say between a man and a woman in which the woman is subordinate in legal respects. So I'm not sure it's still again a fair analogy to your situation.

  • 79. 1grod  |  April 28, 2015 at 7:34 pm

    Ian, thank you bud for all the work that you have put into this and the next three entries Which of these exchanges/statements is most compelling to you? G

  • 80. ianbirmingham  |  April 28, 2015 at 6:53 pm

    Continued from Part 1…

    Alito (page 18): What if there's… 4 people, 2 men and 2 women, it's not — it's not the sort of polygamous relationship, polygamous marriages that existed in other societies and still exist in some societies today. And let's say they're all consenting adults, highly educated. They're all lawyers. (Laughter) What would be the ground under — under the logic of the decision you would like us to hand down in this case? What would be the logic of denying them the same right?

    Bonauto: The question is one of — again, assuming it's within the fundamental right [to marry], the question then becomes one of justification. And I assume that the States would come in and they would say that there are concerns about consent and coercion. If there's a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife? There are issues around who is it that makes the medical decisions, you know, in the time of crisis. I assume there'd be lots of family disruption issues, setting aside issues of coercion and consent and so on that just don't apply here, when we're talking about two consenting adults who want to make that mutual committment for as long as they shall be. So that's my answer on that.

    Bonauto (page 22): … In terms of waiting, I do think the effect of waiting is not neutral, it does consign same-sex couples to this outlier status, and there will be profound consequences that follow from that. …

    Roberts: You're — you're quite right that the consequences of waiting are not neutral. On the other hand, one of the things that's truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society. I don't know what the latest opinion polls show. The situation in Maine, I think, is — is characteristic. In 2009, I guess it was by referendum, whatever, they banned gay marriage. In 2013, they enacted it as law. I mean, that sort of quick change has been a characteristic of this debate, but if you prevail here, there will be no more debate. I mean, closing of debate can close minds, and — and it will have a consequence on how this new institution is — is accepted. People feel very differently about something if they have a chance to vote on it than if it's imposed on them by — by the courts.

    Bonauto (page 27): …in terms of the question of who decides, it's not about the Court versus the States. It's about the individual making the choice to marry and with whom to marry, or the government.

    Alito (page 33): Well, let's — let's think about two groups of two people. The first is the same-sex couple who have been together for 25 years, and they get married either as a result of a change in State law or as a result of a Court decision. The second two people are unmarried siblings. They've lived together for 25 years. Their financial relationship is the same as the — the same-sex couple. They share household expenses and household chores in the same way. They care for each other in the same way. Is there any reason why the law should treat the two groups differently?

    Verrilli: Well, I'm not sure that the law would — the — the law allows 100 percent of heterosexual people to enter into a marriage that's consistent with their sexual orientation, and in these States, it forbids 100 percent of gay and lesbian people from entering into a marriage that's consistent with their sexual orientation —

    Alito: As far as the — the benefits that Federal law confers on married people, such as in Windsor, the effect on estate taxes, what would be the reason for treating those two groups differently?

    Verrilli: Well, I — I — I'm not entirely sure there would be, but, of course, marriage is something more fundamental than that. It is an enduring bond between two people. …

    Verrilli (page 37): … there is no Federal law now generally banning discrimination based on sexual orientation …

  • 81. JayJonson  |  April 29, 2015 at 8:32 am

    Alito and Scalia are simply demagogues, one mouthing the "churches will have to perform gay marriage" mantra, the other fear-mongering with the spectre of polygamy and incest. I wish a) that Bonauto had not wasted so much time trying to take Scalia's nonsense seriously, until Kagan and Breyer rescued her by reminding him of the First Amendment; and b) that Verrelli would have just pointed out that Alito's analogy between siblings and a married couple is absurd because the whole point of marriage is to make a familial relationship with someone who is not a part of one's family. That has been the definition of marriage far longer than this nonsense about one man-one woman having been the norm for millenia–the real "traditional" marriage has been one man and several women.

  • 82. ianbirmingham  |  April 28, 2015 at 6:56 pm

    Continued from Part 2…

    Kennedy (page 38): … I'm interested in your comments on Glucksberg, which says that we should have to define a fundamental right in its narrowest terms. …

    Verrilli: Justice Kennedy, forgive me for answering the question this way. We do recognize that there's a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven't made the fundamental rights argument under Glucksberg. And therefore, I'm not sure it would be appropriate for me not having briefed it to comment on that.

    Verrilli (page 40): … what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now. And it is emphatically the duty of this Court, in this case, as it was in Lawrence, to decide what the Fourteenth Amendment requires. And what I would suggest is that … it is simply untenable — untenable to suggest that they can be denied the right of equal participation in the 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.

    Breyer (page 58): … marriage is about as basic a right as there is; that the Constitution and Amendment Fourteen does say you cannot deprive a person of liberty, certainly of basic liberty, without due process of law … the reason that I'm interested in that is we don't get into this more scholastic effort to distinguish between rational basis and middle tier and some higher tier and so forth. And it's not going to get into all these questions of balancing free religion rights versus gay rights and so forth. We'd avoid that in this case. And perhaps that's wise, if not legally required, which it may be. And so I'd like your response …

    Bursch (page 60): … in Windsor, this Court said that the limitation of marriage to opposite-sex couples has always been thought to be fundamental. And so under the — the Glucksberg test, that's dispositive. Now you could change that —

    Sotomayor: … I don't actually accept your starting premise. The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right. We've said it in a number of cases. The issue is you can't narrow it down to say, but is gay marriage fundamental? Has black-and-white marriage been treated fundamentally? The issue was starting from the proposition of, is the right to marry fundamental? And then is it compelling for a State to exclude a group of people? And that, for me, is as — as simple as the question gets.

    Bursch: … I'm simply pointing out that … in Windsor, you already answered that question. It doesn't matter how broadly or narrowly we define it. What's been fundamentally understood as a limitation is the opposite sex nature of marriage.

  • 83. 1grod  |  April 29, 2015 at 10:57 am

    Bursch's simply pointing out: When challenged/caught, he adopts a number of defensive strategies "I'm simply pointing out – and proceeds to assert a false premise. He also claims misunderstanding of unambigous questions. Re the assertion he was misappropriated from Windsor "For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. "The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion." p 14

  • 84. ianbirmingham  |  April 28, 2015 at 6:57 pm

    Continued from Part 3…

    Roberts: Counsel, I'm — I'm not sure it's necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. And the difference is based upon their different sex. Why isn't that a straightforward question of sexual discrimination?

    Bursch: … this Court has recognized in Nguyen v. INS that it's appropriate to draw lines based on sex if it's related to biology. … You'll recall that's the case where you had a law that determined citizenship of children born to divorced or — or unmarried individuals overseas. And the law said if it was the child of a citizen mother, then they automatically had citizenship, but if it was the father, then the father had to, one, prove paternity and, two, make child support payments up to age 18. And that's an obvious sex discrimination. And the Court said —

    Ginsburg: … the Court's rationale for that was we know who the mother is. We're fearful that the father is claiming to be the father for some benefits that he's going to get from that status, but we can't be sure he is the father.

    Bursch: Right. Justice Ginsburg, that was the justification for the proof of parenthood. But I would like to — to quote from the opinion about the second interest, the — the child support. The Court said that the government had an important interest in ensuring an opportunity to have a meaningful parent-child relationship between that biological father and a child. And the law substantially advanced that interest, and this is why, and I'm going to quote. "It is almost axiomatic that a policy which seeks to foster the opportunity for meaningful parent-child bonds to develop has a close and substantial bearing on the governmental interest in the actual formation of that bond." And that is the exact same interest …

    Ginsburg: It's not — it — in the Nguyen case, the father could get the status of a parent. He just had to do some things that the mother didn't have to do. It wasn't difficult. Here it's a total exclusion. And in the Nguyen case, the — the father was complaining that he shouldn't have to do anything other than what a mother did, and the Court said, yeah, you do have to do something. It's not much.

  • 85. NetAmigo  |  April 28, 2015 at 7:10 pm

    Here's the take from Lyle Denniston.

  • 86. tigris26  |  April 29, 2015 at 9:17 am

    Really love Lyle's observations on yesterday's arguments. I agree with him: "Kennedy appeared to have moved from hesitancy toward acceptance" within the 2.5 hours of arguments.

    And to concur with his title, I think Kennedy was "hesitant but leaning". Kennedy's vote will not be one against same-sex marriage. It just may be a narrow one… in terms of liberty, not compromising with Q2. Kennedy appeared to be having no interest in Q2.

  • 87. SteveThomas1  |  April 28, 2015 at 8:44 pm

    This may be a good time to remind folks that Justice Thomas, joined by Justice Scalia, appears to have at least intimated that the decision on same-sex marriage has already been made. This came in two opinions dissenting from the Court's refusal to grant stays. Here are the opinions:

  • 88. VIRick  |  April 28, 2015 at 9:00 pm

    "This came in two opinions dissenting from the Court's refusal to grant stays."

    Thank you. Yes, precisely.

  • 89. Rick55845  |  April 29, 2015 at 5:50 am

    No doubt Scalia has been honing his breathtakingly histrionic dissent for months now, lol.

  • 90. StraightDave  |  April 29, 2015 at 9:08 am

    Oh, my dear naive Clarence…

    "THOMAS,J., dissenting

    Because States are required to comply with the Constitution, and indeed take care to do so when they enact their laws, …."

    It's because they sometimes don't do that is why we are here today.

  • 91. Fogyreef  |  April 28, 2015 at 11:09 pm

    "Marriage" isn't about love.
    You can be in love and not be married.
    You can be married and not be in love.

    “Marriage" isn't about sex.
    You can have sex and not be married.
    You can be married and not have sex.

    "Marriage” isn't about morality.
    You can have morals and not be married.
    You can be married and have no morals.

    "Marriage" isn't about children.
    You can have children and not be married.
    You can be married and not have children.

    "Marriage" isn't about religion.
    You can be religious and not be married.
    You can be married and not be religious.

    "Marriage" isn't about tradition.
    You can be traditional and not be married.
    You can be married and not be traditional.

    "Marriage" isn't about happiness.
    You can be happy without being married.
    You can be married and not be happy.

    "Marriage" isn't about weddings ceremonies.
    You can hold a ceremony and not be married.
    You can be married with no ceremony.

    "Marriage" isn't about rings.
    You can wear rings without being married.
    You can be married without exchanging rings.

    "Marriage" isn't about vows.
    You can make vows without being married.
    You can be married without vows, only an affirmation; "I do".

    Supporters and non-supporters both need to learn what marriage ISN'T before trying to argue what it IS.

    Marriage is legally only about property, citizenship, kinship and inheritance. The marriage license is an application for State and Federal benefits granted a specific class of people and available equally as guaranteed by the Constitution. Any laws forbidding gay marriage are unconstitutional from their inception. Gay marriage has always been legal in the USA. It has been only the mood of the People preventing the indictment of the officials who acquiesce to the discrimination.

    Any discussions about marriage from a religious perspective are applicable only within the limited scope of that particular religion and carry no legal bearing. They are therefore moot in regards to the legality of marriage as it pertains to civil rights. All arguments about love, romance, reproduction, religious dogma, tradition and family values are CULTURAL MYTHOLOGY and are not related to the legal fiction called marriage.

    Spread the word. If you witness a news host, political pundit, radio host, written article or your Uncle Joe arguing against gay marriage for any reason other than the legality of the license granted by the State, it's up to you to contact them and call them on it, lest the debate be mired perpetually in the mud of ignorance and bigotry. Keep the debate on target.

  • 92. josejoram  |  April 30, 2015 at 11:28 am

    For me, this is the best possible argument for marriage equality.

  • 93. NorthernAspect  |  April 29, 2015 at 2:49 am

    While Justice Roberts' questions during oral arguments didn't give away his position, I found his *tone* quite conciliatory as compared to the Windsor oral arguments, especially while questioning counsel for the Plaintiffs.

    Of course his tone is not determinative of his final opinion, but it seems to be telling of how we will approach the licensing question in his opinion, and would at least suggest that he hasn't foreclosed his final opinion in the manner of Alito and Scalia.

  • 94. guitaristbl  |  April 29, 2015 at 5:19 am

    I think everything is on when it comes to the first question discussed on this article…Roberts has shut down the door firmly and Kennedy is having a vast internal struggle on the issue. The "millenia" comment is the one on which most attention is focused and for good reason I think. Kennedy is not sure yet I think on what he should do. The three women were the strongest advocates with Breyer playing a bit of the devil's advocate on the case when questioning Bonauto.
    Alito's comments about ancient greece, siblings, polygamy etc where mostly properly answered I think. The comment about ancient greece did not deserve any dignified answer anyway, especially coming from a conservative and how much they think of international law or history. The polygamy argument was properly answered by Bonauto, showing the implications and differences although I doubt Alito was convinced. It seemed like Alito's main theme and thought was to trap Bonauto in a rhetoric that would show that she thinks everyone who voted against marriage equality is bigoted. His main concern essentially was the perception of the anti-gay crowd here (for good reason I would add).
    Scalia was Scalia…Red herrings about priests and marriage performers etc properly answered by Kagan and Breyer who had to spell out the first amendment to him before he seemed to concede. Other than that he at least knew about 11 states enacting ME through referendum or legislation – knowledge that provides zero substance to a case about constitutional law though.
    Roberts made his intentions clear from the first minute with the "redefinition" comment on the licensing question. He brought up Maine (as Sutton did) and said that "shutting down" debate closes minds while the opposite has been proven – once marriage equality comes somewhere acceptance rises. His comment about sex discrimination during the arguments by Bursch was interesting but more of a "devil's advocate" kind of thing than any actual indication that he considers it a base for a ruling in favour of ME.
    I have to say that Bursch really did not study his main target, Kennedy, when he downplayed the importance of the dignity bestowed upon the couple when entering a marriage before the court. He really lost Kennedy there, to what degree it remains to be seen.
    But while Kennedy's questioning to Bursch was encouraging I believe he kept some fine balances overall on both sides, making him very hard to read and giving hope to the anti-equality side. I also did not expect him to reject the social science on same sex parenting etc so easily as 'too new", which was another very discouraging comment..

    Overall I predict a very close and narrow 5-4 on this question for either side at the moment. IF (and that's a substantial if) it is in favour of ME, we won't be getting heightened scrutiny and we are heading for a "fundumental right" pathway rather than an equal protection one, which could be read more broadly.
    But I can easily see Kennedy being tempted to reach a compromise and have a wide consensus for a negative answer to the first question and a positive one to the 2nd.

  • 95. Zack12  |  April 29, 2015 at 6:12 am

    I think it will be a 5-4 ruling in our favor on both questions but I don't think we will get the heightened scrutiny ruling we need either.
    Kennedy asked the same questions of our side two years ago in the Prop 8 case before going on to talk about dignity and the children of same sex couples so I'm not worried.
    Yes he asked tough questions of both sides but listening to the audio, it's clear that Bursch did NOT do well in front of the one justice he needed to.
    And I've said before, allowing states to ban marriage will create a seperate but equal status akin to the bans on interracial marriage.
    It's all or nothing and I believe we have the all.

  • 96. guitaristbl  |  April 29, 2015 at 7:13 am

    Bursch frustrated the liberal justices that's for sure and he kept going on and on with the same point about the link to biological parents which seemed to frustrate especially Kagan and Breyer.
    He did better in retaliation to Turner etc and all those other marriage cases but as I said he made a grave mistake in the way he handled the "dignity" matter in front of Kennedy.

    I will give it to him that he was eloquent and had Scalia and Alito clearly on his side to boost him in the one time each talked during his arguments but still fell to some fallacies in regards to adoption.

    Alito gave him a good chance to capitalize on the "slippery slope" polygamy argument but he failed to grasp it for long and went to the same "children linked to their biological parents" loop.

    He also failed to come back with a strong argument to the sole remark by Roberts on sex discrimination with the case he provided, Ginsburg essential shredded that quite efficiently (I doubt it convinced Roberts but still..)

    I don't believe it's an 100 % all or nothing scenario but I agree that Bursch blew it on the "dignity" part entirely with the one justice he needed to convince.

  • 97. Zack12  |  April 29, 2015 at 7:24 am

    He did well with Scalia and Alito because they are bigots.
    I get many people think the court might try to split the baby but I simply don't see how that will work for our side.
    California and Oregon among other states will have their bans put back in place and same sex couples in many areas would have to travel hundreds of miles to get a marriage license, something many of them can't do.
    Everything short of striking down all the bans is a loss.

  • 98. flyerguy77  |  April 29, 2015 at 11:39 am

    First all, if SCOTUS rules against freedom to marry the bans in CA, Oregon, PA and other states won't be restated. The decisions were FINAL decision.

  • 99. KnottiBuoy  |  April 29, 2015 at 7:24 am

    Roberts said "My question is, you're not seeking to join the institution, you're seeking to change what the institution is. The fundamental core of the institution is the opposite-sex relationship and you want to introduce into it a same-sex relationship."

    I'm still confused on how you re-define the fundamental core of an institution through exclusion. I find that premise problematic. In the same vein of re-defining the institution of voting by allowing women to participate or signing the emancipation proclamation changed the core meaning of freedom. If the premise is correct, the definition of marriage could perhaps be "better" defined by excluding a number of different of people.

  • 100. TomPHL  |  April 30, 2015 at 7:14 am

    I'm not sure that Roberts comment about sex discrimination was a red herring. If there is a majority for marriage equality from the perspective of the conservatives it does the least damage. It does not create a new protected class and cannot be used as precedent in future cases of discrimination on the basis of sexual orientation. So if he can convince the RATS that this is the best they can hope for and one of the Windsor 5 that this is the least intrusion by the court into the democratic process it is a possible outcome. This would be a total victory on the marriage equality question, but would be very disappointing from our perspective as we fight to counter other discrimination against the LGBT community. I still believe that we will win with a Windsor 2 decision written by Kennedy. but cannot discount this possibility.

  • 101. JayJonson  |  April 30, 2015 at 8:00 am

    See Ari Ezra Waldman on why a victory on sex discrimination grounds is not much of a victory:

    I am not sure that I agree with him, but his points are worth considering.

  • 102. SethInMaryland  |  April 30, 2015 at 8:34 am

    When i think about it, do i want this ruling broad as possible in our favor ? Certainly yes, however i take anything that guarentees marrage equality, as my wife always says you got to take what you get, a win is win

  • 103. RnL2008  |  April 30, 2015 at 11:32 am

    A win is a win…….however no matter how SCOTUS rules on this issue, there will be more battles to fight……and why is it that the anti-gay folks think it's okay to DISCRIMINATE us in EVERY aspect of our daily lives? They WOULDN'T like it if we were the one's doing it to them, but they feel it's okay to do it to us…….why?

  • 104. 1grod  |  April 30, 2015 at 10:13 am

    Tom – in consideration of level of scrutiny, Windsor was more than rational bases but was it with 'bit' or was it more. Sex triggers intermediate scrutiny. If there was buy-in so that a sixth or seven justice is in the majority, there would be a potentially different author to this decision. IMO the stronger that majority, the less resistance in the hold out states like Texas and Alabama. In a repeat of the Windsor decision, and Kennedy the author, it would be a repeat of the ambiguity on level of scrutiny. However that did not stop 35 courts using Windsor's logic and language to arrive at a favourable district court decisions in a two year period. Perhaps just as fast in employment and access. As I understand it, the precedent has been established in a number of circuits that sexual orientation is a suspect class (9th circuit). All would not be lost – far from it.

  • 105. TomPHL  |  April 30, 2015 at 10:34 am

    I would certainly like a decision that included heightened scrutiny for sexual orientation, but don't think we will get it on a national level this time. I don't prefer a Windsor 2 decision on Q1 & Q2, but it is what I expect to get and it would be a victory, if not a complete one. A victory on only Q2 would open up such legal a can of worms that even the RATS might hesitate. A decision on sex discrimination would be a victory but a very limited one, although some of the commenters on Ari Waldman's piece on towleroad think Ari Waldman & I are wrong in thinking this. Find out in 60 Days.

  • 106. 1grod  |  April 30, 2015 at 10:27 am

    Tom least intrusion into the democratic process: Sixth circuit Sutton and Cook were into least intrusion big time. While raised during Oral Agument, I don't have a sense of how that theme played out at the end of the day. Can anyone help?

  • 107. franklinsewell  |  April 29, 2015 at 6:13 am

    In re: Justice Kennedy's "millenia," I really want someone to send him a copy of John Boswell's 1994 book, "Same-Sex Unions in Premodern Europe." Boswell clearly details unions in prior "millenia" where the church provided some blessing to same-sex unions, whether they actually called them marriage or not.

  • 108. Zack12  |  April 29, 2015 at 6:21 am

    I wish our side had been better prepared for him.
    I still believe he will rule in our favor but that's no excuse for our side to not expect hard questions from him.

  • 109. 1grod  |  April 29, 2015 at 6:58 am

    Zack – in listening to the audio, it is obvious that those who had not been before this Supremes were nervous, while those like Donald Verrilli and Douglas Hallward-Driemeier were not. More amble or just better known to, easier rapport with the judges. .Verrilli "has participated in more than 100 cases before the Supreme Court and has argued seventeen" while Hallward has filed more than 150 briefs to the Court and appeared before the justices 15 times. The experience, he said, taught him to craft his arguments in a way that will resonate with the justices".

  • 110. justplainkay  |  April 29, 2015 at 8:00 am

    Mary had a strategy or overarching message in mind for her arguments. It isn't that she wasn't prepared for the question – it was that she didn't want to get down into meaningless bunny holes and therefore off message. This was how she handled numerous "left field" questions – the attorneys attempt to use every question to bring out their message, which often means not answering the exact question, many of which don't deserve the time of day (ala "what would Plato do").

    Of course, if she had it to do over, she would say something like "the constitution doesn't enshrine the wisdom of millenia, it enshrines equal protection of the laws of this land." and be done with that bunny hole!

    IN all, Mary did a great job of focusing almost solely on Justice Kennedy who understands completely that "times can blind".

  • 111. A_Jayne  |  April 29, 2015 at 10:29 am

    Exactly – "the constitution doesn't enshrine the wisdom of millenia, it enshrines equal protection of the laws of this land" – many things/ideas did not exist before this country did – like equality and equal protection, which is what this case was all about, so the ancient Greeks' practices (or not) are irrelevant.

  • 112. NorthernAspect  |  April 30, 2015 at 1:49 am

    Agree, I'm sure Bonauto was aware of the solemnization of some same-sex union throughout the millennia, but she anticipated that the those solemnizations could not be equated to what Plaintiffs were requesting "as a legal matter" and would distract from her strongest points.

  • 113. 1grod  |  April 30, 2015 at 8:27 am

    Kay: sorry to disagree with you. I rank her third, Verrilli, Hallward-Driemeier. Bonauto, Bursch and Whalen. It is surprising the Bursch is ranked by me so unfavourably, he had been before the Supremes nine times. He won Schuette. Whalen had prepared a brief but not argued it before the Judges. Douglas Hallward-Driemeier says: "experience taught him to craft his arguments [aka message] in a way that will resonate with the justices". You say Ms Bonauto used every question to bring out her message, which often means not answering the exact question. If the question and answer are not congruent, were is the resonance? Your observation that Ms Bonauto did a great job of focusing almost solely on Justice Kennedy causes me to be motivated to relisten or re-read the transcript. It may change my opinion.

  • 114. StraightDave  |  April 30, 2015 at 9:00 am

    This was a whole different ballgame than Schuette. The same points just don't work at all. People have been confusing the legal issues with those in Obergefell from Day 1. If Bursch was treating this as Schuette part 2, he was doomed from the start. The Schuette ammunition was of no use. They would have been better off picking a guy who was not contaminated with such a false sense of confidence. He took a weak case and made it worse.

  • 115. Zack12  |  April 30, 2015 at 10:30 am

    I think that was his main problem.
    He went in there thinking he could use the same arguments and got clobbered.

  • 116. JayJonson  |  April 30, 2015 at 11:15 am

    Bursch is glib but shallow and exceedingly arrogant. I do not think Kennedy was ever going to buy his bs, but he certainly lost whatever credibility he had by the condescension he showed toward Justice Kennedy. Someone mentioned that he "sounded gay." He also looks gay. Indeed, he looks about 19! But if he is gay, he is overcompensating since he has 5 children. Don't know his religious background, but he could be a Mormon.

  • 117. 1grod  |  April 29, 2015 at 6:49 am

    Franklin: Good idea. I do not know the protocol but contact Mary L. Bonauto
    Civil Rights Project Director, GLAD: [email protected]; or 1-800-455-GLAD

  • 118. franklinsewell  |  April 29, 2015 at 7:03 am

    I sent the email, we'll see what happens. 🙂

  • 119. LK2013  |  April 29, 2015 at 9:26 am

    YES! I have been posting in various places (NY Times, Washington Post, etc.) that the "millenia" comment was particularly disheartening – and echoes Roberts' comments in Windsor ("gay marriage is so new, oh my!) – because it is flat-out ignorant.

    John Boswell's book, "Same Sex Unions in Premodern Europe" is a must-read! Many Native American nations also honored same sex unions over the millenia.

    A very brief allusion to the long history of this issue might have been useful. Then again, the male Justices (even Kennedy) have a poor understanding of how narrow their view of marriage really is historically.


  • 120. tigris26  |  April 29, 2015 at 9:10 am

    Did anyone listen to the Diane Rehm Show on NPR this morning at 10am? She discussed the SCOTUS arguments yesterday. Rehm had several guests on her show (many of whom were court observers/legal experts).

    One caller mentioned the disheartening feelings of ME supporters after hearing Kennedy make his "Millennia" comment. But the court observers on the show stated that at the same time, after making that comment, Kennedy outwardly recognizes that real significant change can occur within a matter of a decade or so. We've learned a lot within just 10 years.

    The two court observers on the show, when asked about what outcome they expect, they both stated – judging from Kennedy's sharp questions/statements referring to the dignity of same-sex couples – that there will be at least a 5-4 ruling in favor. Even possibly Roberts joining on the basis of sex discrimination. The biggest question left to be answered is whether it will a narrow or broad ruling.

    For those of you who have iTunes, I think later on today the free podcast of this segment will be uploaded for everyone to listen. 🙂

  • 121. JayJonson  |  April 30, 2015 at 8:06 am

    I think we panicked too much over the "millenia" comment. I think that that term was lodged in Kennedy's mind because he has been up to his ears reading amici briefs, many of them from conservative churches that use such terms. He threw it out hoping that Mary would quickly squelch it. Unfortunately, she seemed surprised by it and didn't do as good a job as she should have, though she kept approaching it obliquely by alluding to Kennedy's own "times blind" explanation in Lawrence about how the long history of criminalizing homosexuality was no reason to continue it.

    The good news is that Kennedy will have also read many other amici briefs that explain the history of marriage, including briefs by good scholars who understand how marriage has changed significantly over the past millennium.

    He will do the right thing.

  • 122. Ryan K (a.k.a. KELL)  |  May 3, 2015 at 7:48 am

    Agreed on all accounts. Kennedy couldn't just be all tipping his cards during the 2.5 hours. And if the millennia was an issue, he didn't think so in Windsor as the federal government was using it as well. I stand by 5-4 with Kennedy writing for the majority, Scalia or Alito on the dissent, and a separate dissent by the CJ.

  • 123. Raga  |  May 3, 2015 at 11:18 am

    Agreed, except that "the millennia issue" was much subdued in Windsor, because there, the state (New York) had chosen to extend marriage licenses to same-sex couples on its own (i.e., the people, through the legislature, allowed it, which even Scalia can't find fault with). In contrast, here, the Court would be forcing the state to do so against its will.

  • 124. NorthernAspect  |  May 2, 2015 at 1:00 pm

    Lawrence v. Texas Oral Arguments:


  • 125. Raga  |  May 3, 2015 at 5:17 am

    Breyer gets it right when he asks, "So… so what is the justification for this statute, other than, you know, it's not what they say on the other side, is this is simply, I do not like thee, Doctor Fell, the reason why I cannot tell."

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