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Tuesday, April 28, 2015

Oral Arguments on Gay Marriage in the Supreme Court: What Was and What Wasn’t Said



 

Today the United States Supreme Court heard 150 minutes (60 minutes is the usual amount) of oral arguments in Obergefell v. Hodges, the appeal from the Sixth Circuit’s decision that upheld the right of the States of Ohio, Michigan, Tennessee, and Kentucky to ban gay marriages.  For my discussion of that decision see http://douglaswhaley.blogspot.com/2014/11/gay-marriage-6th-circuit-jeffrey-sutton.html.  The Court divided the oral arguments into two parts: 90 minutes on the question of whether the 14th Amendment of the Constitution (equal protection, due process of the laws) requires the states to recognize gay marriages, and 60 minutes on whether gay marriages validly entered into in states recognizing such marriages (like my husband and my marriage in New York two years ago) must be honored in states that do not (like Ohio, where we live).  A bit of terminology: since those in favor of gay marriage lost in the court below they are “petitioners” in the Supreme Court, while the States that won below are the “respondents.”  I listened to the arguments on the internet (audio only—they are not, so far, being televised or even videotaped for posterity).


Justice Kennedy
As I’ve explained before—see http://douglaswhaley.blogspot.com/2013/01/gay-marriage-doma-proposition-8-and.html—the most powerful judge in the world is Supreme Court’s Justice Anthony Kennedy.  There are four liberal Justices and four conservatives, and that places Justice Kennedy in the middle as the swing vote.  He has been very, very good in gay rights cases, authoring the three famous opinions protecting gays: Lawrence v. Texas (striking down all sodomy laws as unconstitutional), Romer v. Evans (striking down a Colorado constitutional amendment that took away gay rights), and, in 2013, Windsor v. United States (making the federal government recognize gay marriages).  So today all of the lawyers who stepped up to the lectern to make their arguments, while of course deferential to the other members of the Court, were really only talking to Anthony Kennedy (and paying attention to not only what he said but also every twitch in his face).


Chief Justice Roberts called for Obergefell v. Hodges to begin, but not far into petitioner’s opening argument a protestor stood up in the courtroom and loudly began yelling that those who engage in homosexuality will “burn in hell for all eternity.”  As he was led screaming from the room, Justice Scalia impishly remarked that the protest “was rather refreshing actually.”
 
 

When the petitioner’s attorney began she was almost immediately brought up against a statement from Justice Kennedy that what bothered him most was that the definition of “marriage” had been the same—one man, one woman—for millennia, and then he paused to emphasize “millennia!” and that changing it so quickly was perhaps hasty, and maybe “too little time” had passed before this gay marriage experiment was made a constitutional requirement.  Yikes!  Then Justice Steven Breyer, one of the liberals, chimed in with "[S]uddenly, you want nine people outside the ballot box to require states, that don't want to do it, to change . . . what marriage is to include gay people. Why cannot those states at least wait and see whether in fact doing so in the other states is or is not harmful to marriage?Double Yikes!  I listened, stunned but hoping that they were just putting this on the table so it could be discredited early and the harms the gay marriage ban was doing to real people now would carry the day. 

 The respondent’s attorney argued that marriage was meant to protect “procreation” and since gays can’t procreate it was “rational” for states to exclude them from being granted a state-sanctioned marriage.  This was a muddled justification that was hard to say with a solemn expression, and the attorney predictably had a rough time of it.
 


The second part of the session focused on whether the Constitution requires states to recognize gay marriages validly entered into in other states, an issue the Court would get to only if it first upheld gay marriage bans as argued in the earlier part of the session.  This new issue was harder for the respondents to win since states almost always recognize marriages in other states, but here they argued that a strong public policy in favor of procreation protection (the same argument from the first part) not only justified banning gay marriages but keeping out foreign ones.  There was a confusing discussion of Article 4 of the U.S. Constitution (which requires the states to give “full faith and credit . . . to the acts, records, and judicial proceedings of every other state”), but no one, neither the attorneys nor the members of the Court seemed to have much grasp of the history of the Article nor its judicial treatment in the courts (which amazed me, because I’ve explored the issue and was embarrassed that obvious arguments on both sides were missed).  The petitioners made points by detailing the plight of some of the actual plaintiffs in this appeal.  For example, a gay couple was married in California, one husband gave up his job to be the primary caregiver for their adopted children, and when the couple and their children had to move to Tennessee because the working spouse was transferred there, suddenly they were no longer married in the new state, and had major problems with who could make medical decisions for the children in emergency situations.  To this the respondent’s attorney pointed out that if the Court decided states could constitutionally ban gay marriages, then making them recognize those from other states would, effectively, fill their state with gays married in those states, and the ban would be useless.  He concluded by pointing out that states that have stuck with traditional marriage have not changed, have not done anything except keep the status quo, and are then being punished by being forced to agree with experiments in other states with which they do not approve.  


 

With that the Chief Justice announced the case was “submitted,” and the argument ended.  Now what?

Well, the Court will now meet and talk about the case and vote.  The senior justice on each side will assign the writing of the opinions (the majority and the dissent), and the writers will get to work producing drafts that the others will sign off on.  The Court must hand down its decision by the end of June when the Court’s 2014 session is over.  My guess is that they will delay until the last day and then throw the opinion from the door of the airplane that they all board as they head off on vacation.
 



What bothered me most about the arguments were the things that were not discussed but which were on everyone’s minds. 

The first of these is the messes that will erupt no matter what the Court does.  If the Court decides, as many people including me have predicted, that it is unconstitutional to ban gay marriages, there will be a mini-version of the chaos that swept the country when the Court in 1954 handed down Brown v. Board of Education, requiring that blacks be given the same rights as whites.  There were riots and refusals to obey and troops had to be sent into schools to enforce the Court’s decision.  This won’t be that bad, but it also won’t be just a one-off event.

If the Court decides that the states win and gay marriage bans are constitutional there are major problems with that too.  First of all the Court knows—we all know—that the day will come in the future when the Court will have to change its mind, just as Brown overruled Plessy v. Ferguson (1896) (racial segregation allowed, and blacks to be “separate but equal”), or, more recently, Lawrence v. Texas (2003) (sodomy statutes unconstitutional) overruled Bowers v. Hardwick (1986) (constitutional for Georgia to have a criminal statute making private gay sex a felony).  So deciding in 2015 not to declare these anti-gay statutes unconstitutional just kicks the can down the road, leaving thousands (millions?) of gays and their families to suffer on the journey down that road.

Even more immediately troubling is the effect on the many lower court federal decisions in the past two years that state gay marriage bans were unconstitutional, allowing thousands of gays to get married in those states.  Are those marriages now invalid?  Are the statutes that were declared unconstitutional now permissible?  Must they be reenacted?   Must there be new lawsuits to determine this issue in each of those jurisdictions?  In the meantime can gays still get married there?  Who the hell knows?  To use clichés: you can’t unring that bell, you can’t unscramble those eggs.



But the chief thing is that not a single person—lawyers, judges, those who wrote the briefs, the journalists—has pointed out the real issue in this case.  It’s a simple fact, demonstrated by the protester in the Court, that many people in this country hate gays.  Their bible tells them that gays are an abomination and their guts tell them that what gays do in bed is repellant and should certainly not be enshrined in the United States Constitution as a right to be forced down the throats of God’s clean people.  That issue needs to be front and center and addressed.

I have gay friends who find the idea of heterosexual sex to be repellant.  One gay man, a law professor, gets ill at the thought of having to touch a naked woman.  A lesbian friend has a similar reaction to the idea of a male penis being thrust into a woman’s body.  If these gay people were in the majority would their revulsion be a sufficient justification for banning straight sex?  Perhaps the best solution is that we should all studiously avoid thinking about what other people do in bed—that way, as King Lear observed, lies madness.

It might be tempting for the Court to just affirm the status quo and let gay marriage bans stand.  But it was pointed out to the Court, and rightly so, that being “neutral” has major real life consequences for innocent people who only want to marry and have their families protected.  When I took a course in Jurisprudence (legal philosophy) in law school one of the things that was emphasized was that a decision not to act is in fact a decision to act.  It rules in favor of one side and the other side is out in the cold with no legal protection at all. 
 
  
So, as my mother used to say, just "hold your thumbs and hope for the best" between now and the first of July.
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 Related Posts:

Married at Last! A Gay Lawyer Looks at What the Supreme Court Actually Said About Same-Sex Marriage,” June 30, 2015; http://douglaswhaley.blogspot.com/2015/06/married-at-last-gay-lawyer-looks-at.html

“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html

 

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