As 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.
The 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.
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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.