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Marriage at the Supreme Court 2.0 Analysis: Why a Sex Discrimination Ruling is No Victory At All


J_robertsDuring oral argument in Obergefell v. Hodges, the same-sex marriage case, Chief Justice John Roberts asked an important, substantive question that had some commentators scratching their heads. The plaintiffs' lawyer had just made the argument that bans on gays marrying amounts to discrimination on the basis of sexual orientation. Then, the Chief Justice said:

I’m not sure it’s necessary to get into sexual orientation to resolve this 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?

In a way, he's right. Sue can marry Joe because she's a woman; Tom can't marry Joe because he's a man. That's sex discrimination. And although this seems pretty obvious, the argument got scant attention in the volumes of briefs before the Court in Obergefell and was raised only a few times during the post-Windsor onslaught of cases over the last two years.

That is not to say that the sex discrimination argument is entirely foreign to the marriage equality movement. Indeed, as Northwestern Law Professor Andrew Koppelman and George Mason Law Professor Ilya Somin noted in their Obergefell amicus brief, some of the first generation of marriage equality cases relied on a sex discrimination rationale. And if his question is any indication of his ultimate opinion -- a dubious correlation, however -- the Chief Justice could be another vote in favor of marriage equality.

Perhaps most gay couples yearning to marry don't care how we get to a nationwide freedom to marry, just as long as we get there in the end. After all, a win is a win is a win. But a sex discrimination argument would be like winning a battle because the enemy engaged in a strategic retreat: it is not only unsatisfying, it doesn't answer the ultimate question of who wins the war. It leaves gay persons without necessary constitutional protections and opens us up to myriad forms of discrimination. Arguing that gay marriage bans are examples of sex discrimination is a half truth: they may be discriminating on the basis of sex, but they absolutely discriminate on the basis of sexual orientation, as well. To ignore the latter just because the former is a little easier offers tacit approval for antigay discrimination.

I tease out the sex discrimination argument, explain why it should be discarded, and speculate on how the argument could play out in June, AFTER THE JUMP...

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Marriage at the Supreme Court 2.0 Analysis: Recognizing Valid Out-of-State Marriages



DriemeierAs we have discussed, the single consolidated case of Obergefell v. Hodges raised two legal questions. The first question, which we have been discussing, is whether the Fourteenth Amendment prohibits States from banning gays from marrying. The second question, inspired by several plaintiff couples who married in one state but live in states that do not allow gays to marry, asks whether the Fourteenth Amendment allows a states to refuse to recognize valid marriages performed out of state.

A few preliminary notes before we get to the argument:

  • If plaintiffs win on Question 1 -- if the Fourteenth Amendment prohibits marriage discrimination -- Question 2 is irrelevant. Plaintiffs would be able to go home and get married.

  • It is possible that the Court could agree with one party on one question and disagree with that party on another question. For example, the Court could say states have to recognize valid out of state marriages, but they need not be forced to perform them on their own. That's a tough middle road because it would ultimately result in a nationwide right to marry, but cause significant hardship.

WhelanThe argument lasted a little under an hour. Doug Hallward-Driemeier (above, right), an accomplished Supreme Court practitioner, argued for marriage equality. Mr. Hallward-Driemeier, like his colleague Mary Bonauto, did a fine job under difficult circumstances. Ms. Bonauto had a hotter bench. Compared to both, Mr. Joseph Whelan (right), Solicitor General of Tennessee, was an absolutely failure. He started his argument at about minute 24. He didn't know the law, made obvious mistakes on basic material, and had the justices asking questions as if Mr. Whelan were back in first year of law school. The first 10 minutes of his argument amounted to the justices challenging him on basic questions of law. Justice Breyer, often playing the role of the referee today, took a professorial approach: "what case says that", for example, When this happens, you know your day is going poorly.

A few notable things happened (and didn't happen):

  • Justice Kennedy did not ask a single question on Question 2. This could be a tip of that hat to where Justice Kennedy is leaning. Question 2 is irrelevant if the Court decides that States cannot ban gays from marrying. That Justice Kennedy didn't have any questions -- that he wasn't concerned about any legal issue -- may suggest that he doesn't need to address Question 2. 

    And it wasn't just Justice Kennedy. There was decidedly fewer questions, and fewer hostile questions, from the bench during Question 2. This suggests that several members of the Court are indeed ready and willing to decide on Question 1.

  • At Minute 25, Justice Scalia wanted to know why the Full Faith and Credit Clause, which requires states to recognize the rulings and decisions of other states, does not control Question 2. It took Mr. Whelan some time, after a detour into several incorrect statements of law, to finally aver that Supreme Court precedents have distinguished between court orders and things like marriage licenses. Orders and judgments get full faith and credit; traditionally, marriage licenses do not. Notably, it doesn't have to be that way. The Supreme Court could say that the clause could apply to marriage licenses.

The rest of the argument seemed like an anti-climax. Mr. Hallward-Driemeier did a fine job going back to his talking points and framing the debate according to the narrative of his clients. Mr. Whelan failed miserably from question to question.

Stay tuned to Towleroad for analysis once we take a few steps back.

And if you missed the earlier parts of this analysis, you can find them here: Part 1, Part 2, Part 3...


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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.

Marriage at the Supreme Court 2.0 Analysis: The States' Arguments Are Not About Gays



It's remarkable how the States could make their arguments against letting gays marry and almost ignore the antigay discrimination element. It may be good strategy: you don't want to admit that you're oppressing people. But it is still a remarkable thing to ignore the people your policies hurt and reorient your argument into something about institutional competence or separation of powers. The question the States see is at issue is this: Who decides?

"Is it the people ... or is it the federal courts?"

BurschThe States' attorney John J. Bursch (Special Assistant Attorney General, Michigan) went further: This case, he said, is about "the fundamental liberty interest" of the citizens of the States to "decide what marriage means."

It took Justices Sotomayor and Breyer less than 2 seconds each to chime and say no. And it just got worse from here for a lawyer who didn't have many answers. 

Justices Sotomayor, Kagan, Breyer, and Ginsburg focused many of their questions on the States' argument that banning gays from marrying will actually enhance opposite-sex marriage. Obviously, the States' attorney could not answer that because banning gays from marrying has no effect on opposite-sex marriages. He fumbled the ball, relying on a softball question from Justice Scalia that we will discuss in a future post. This argument is a loser for the States.

The most symbolic moment came when the States' attorney posed a hypothetical. Imagine there are two couples, both have been together for several years, both are married, both have a three-year-old child: one child grows up believing that marriage is about keeping the family unit, including the child, together (if you are pictorially-inclined, imagine a triangle); the other child grows up believing that marriage is about expressing the emotional commitment between the individuals married (imagine a line) and as that commitment fades, the marriage breaks up. The States' attorney was arguing that two-person commitment is not enough because as an ideal of marriage, mere two-person commitment weakens marriage. It makes it about just the married people, not the life that they are encouraged to bring into the world. A child who grows up in a world where marriage is a line is more likely to get divorced and more likely to not procreate. A reasonable voter could believe that the triangle is better than the line.

In a way, this is a clever strategic argument because it turns the marriage equality push on love and commitment into a burden.

But it is insidious, discriminatory, and downright evil. I will highlight two ways. First, it reminds us of the stereotypes of gay persons as purely hedonistic and out for themselves. Second, it derogates the commitment of those persons who simply do not want to have children. And third, as Justice Kennedy noticed very quickly, the relevance of that argument to the current case assumes that gay marriages could not have a "more noble purpose." To suggest that gay couples cannot embrace the noble purposes of marriages is deeply offensive.

KaganThe States' argument shattered when Justice Kagan posed the question of allowing couples who do not want -- or cannot have -- children. The States' definition of marriage was "procreation centered," as Justice Kagan said. If that were correct, then it should also be constitutional to ban couples who cannot or will not have children from marrying.

A few take aways from Question 1:

  • Justice Kennedy seemed entirely unconvinced by everything the States' attorney said. He was critical of the States' arguments and asked pointed questions that expressed his skepticism.

  • The States' argument comes down to two related points: A reasonable voter could believe that marriage should be bound up with the state's interest in encouraging procreation inside marriage. If that's true, then it is entirely reasonable for state voters to choose opposite-sex marriage over same-sex marriage. This returns us to the question of "who decides?" Should a court step in or should the will of the people be left?

    The problem with that argument is that it doesn't make any sense. Yes, a reasonable voter could believe that marriage is about creating children. However, there is no connection between that reasonable view and banning gays from marrying. Justice Kagan understood this, as did Justice Breyer and Justice Ginsburg. Justice Kennedy understood it, too.

There is, obviously, much more to discuss. Argument summaries on Question 2 are coming up.


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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.

Marriage at the Supreme Court 2.0 Analysis: Donald Verrilli Goes to Bat for Marriage Equality



Before we get to Solicitor General Donald Verrilli, who argued after Ms. Bonauto on the first question -- does the Fourteenth Amendment require all states to let gays marry -- one additional word about Part 1.

KennedyJustice 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.

Follow along on the AUDIO files at 27:00 on the 'Question 1' Soundcloud segment HERE.

VerrilliDonald Verrilli, the Federal Government's lead lawyer at the Court, gave a strong argument in favor of marriage equality, stating, in the end, that it is "untenable" to take a wait-and-see approach and just let the question of equality play out in the states. First, the way it would play out is the creation of two different subcountries: one with marriage equality and one without. Second, the discrimination is evident and ongoing, with the Court allowing marriages to go forward in countless jurisdictions across the country. Permitting the status quo for some undefinable time is harmful.

A couple of initial conclusions from only this first part of the oral argument:

  • The oral arguments are not about persuading the justices. They most likely have their minds made up. But the justices are making points through questions, reminding oralists what concerns them and reminding their colleagues that these are the issues. There is also a lot of politics going on here. The Supreme Court is, for better or for worse, a political body in that it has to understand what's happening outside. Scalia asks questions, sometimes, for that reason; the Chief Justice stays silent, sometimes, for that reason. Justice Breyer strikes a middle ground tone, sometimes, for that reason. Do not read too much into those questions.

  • Donald Verrilli started his argument by saying that the case is about the "dignity" of gay persons and the "dignity" of their children. This is a direct message to Justice Kennedy, who wrote his Windsor opinion focused on the dignity of gay persons.

  • The conservative justices are most concerned with the question of "who decides?" More on that in the next column, but it strikes me as political posturing and quite expected. Conservatives have long argued that judges are too "activist" -- they have thought so since the progressive courts of the 1960s. (Notably, they didn't think so before, when conservative courts were pretty aggressive, but that's another story.) All questions from Justices Alito and Scalia should be seen in that light: whatever they bring up is tinted by their distaste for having groups use the Federal Constitution to solve all the problems of modern discrimination. Alas, that's what it's there for (among other things).

  • Justice Alito asked a few questions about how Plato said wonderful things about gays, but Greece still didn't officially allow gays to marry. Accuracy of what happened in Greece aside, Justice Alito appears to be trying to say that you can be opposed to gay marriage and not be a total bigot (See Plato). 

    That argument is miles off topic. It is absolutely irrelevant what Plato did or did not do. Greece didn't have a Fourteenth Amendment and Plato lived in a time that condoned (and embraced) slavery. Let's not get off topic. And to his credit, Mr. Verrilli brought the conservative justices back on topic when he stated, at the end of his talk, that it was simply "untenable" to deny rights to same-sex couples under a gradualism approach. The country is ready. It is time.

It also time for the States' arguments. That's up next.


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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.

Marriage at the Supreme Court 2.0: Part 1 of Oral Argument - LEGAL ANALYSIS



The Supreme Court is still hearing argument in a consolidated case, Obergefell v. Hodges, about whether the Fourteenth Amendment guarantees the freedom to marry for gay persons. The first part of the audio of that argument has been made available. Although Towleroad will be analyzing the oral argument more comprehensively in the days to come, here are some initial reflections.

  • BonautoMany of the questions focused on the fact that gays marrying is a new thing, especially with respect to the thousands of years during which marriage was an exclusively opposite-sex institution. The questions to Mary Bonauto (right) came predominantly from Justices Ginsburg, Kennedy, and Alito.

    Justice Kennedy asked several questions in which he admitted that, in his head, when thinking about this issue, he kept going back to the word "millennia." Marriage has been for a man and a woman for a long time. Justice Alito spoke about how gays marrying was a totally new thing. They wanted to know how it is okay for the Court to make such a swift change.

    Ms. Bonauto let the first 15 minutes of her argument get away from her. She failed to answer the question directly, a reality that forced Justice Breyer, a likely vote in favor of marriage equality, to jump in and demand that she answer the question directly. Sometimes that happens; he was helping.

    Ultimately, Ms. Bonauto noted that there is nothing wrong with the Court making a decision now. The Fourteenth Amendment says all "persons," and it doesn't matter how long some state of affairs has existed. If, per our understanding of equality demands today, discrimination exists, the Fourteenth Amendment demands it be erased. What's more, any suggestion that the states should be allowed to decide for themselves and "wait and see" how same-sex marriage in some states affects the institution of marriage, Ms. Bonauto noted that the desire to "wait and see" has never been a legitimate justification for continued discrimination.

    This first part of the argument seemed rough for Ms. Bonauto. She was peppered with questions from a hot bench, and received only two softballs from Justice Ginsburg. Don't be disheartened. Justice Breyer often chimes in to force oralists to stick to the questions, and Ms. Bonauto was just getting started.

  • AlitoJustice Alito brought up the polygamy argument: if the Court decides for marriage equality, what prevents polygamists from demanding a similar right?

    Ms. Bonauto said that states can always jump in to say that polygamists are different. There are a host of social, health policy, and other reasons why more than two people in a union might be detrimental to one or several persons in that union, none of which are at issue here and none of which exist between two committed, loving persons of the same sex.

    This argument is a canard. This case is not about polygamy or polyamorous relationships. The case before the Court is whether there is any justification for what is obvious discrimination. But these arguments keep popping up because they are ways to scare the population who has less exposure to gay persons.

  • A_scaliaJustice Scalia had an exchange with Justice Kagan that barely allowed Ms. Bonauto to speak. 

    Justice Scalia disliked the idea of constitutionalizing the issue because, for example, if the Court says the Constitution guarantees a right for gays to marry, how could that not force a minister to marry two men? Justice Kagan said that nondiscrimination laws have never forced that to happen, but Justice Scalia was concerned about saying that once the Constitution weighs in, there couldn't be exceptions. We can always make exceptions to state laws, not to constitutional requirements.

    Justice Kagan stepped in again. She noted that many rabbis refuse to marry a Jew marrying a non-Jew and yet the Constitution bans discrimination on the basis of religion. Justice Scalia sat silently after that.

A protester started screaming at this point. He was quickly escorted out. Mr. Donald Verrilli, Solicitor General of the United States, comes next for the plaintiffs.



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Ari Ezra Waldman is Associate Professor of Law and the Director of the Institute for Information Law and Policy at New York Law School. He holds a Ph.D. from Columbia University, a J.D. from Harvard Law School, and a B.A. from Harvard College. Ari writes regular posts on law and various LGBT issues.

Marriage Equality at the Supreme Court 2.0: What To Expect at Oral Argument Tomorrow?



On Tuesday, the Supreme Court will hear oral argument in a case called Obergefell v. Hodges. Mr. Obergefell, an Ohio man who married his late husband in a medically-equipped jet on a tarmac in Maryland, is just one plaintiff among several, bringing one case among several. But this case gives the Court the chance to make the freedom to marry a nationwide reality.

Mary Bonauto, a veteran of the LGBT equality movement and winning litigator in the Massachusetts marriage case, will argue on behalf of Michigan and Kentucky couples seeking the right to marry in their home states. Douglas Hallward-Driemeier, a former assistant solicitor general, will argue for Ohio, Kentucky, and Tennessee plaintiffs. Plaintiffs from these states married elsewhere and seek home-state recognition of their out-of-state marriage.

There are, then, two separate questions to be argued on Tuesday: (1) Does the Fourteenth Amendment allow states to ban gays from marrying? (2) Does the Fourteenth Amendment allow states to refuse to recognize valid same-sex marriages performed in other states?

Looking forward to oral arguments on Tuesday, a few underlying questions should dominate the discussion. How the Court approaches these salient issues should determine the outcome.


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