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May 18, 2015 Practice Points

Justice, Can I Talk Now?

By Nick Kacprowski

On April 28, 2015, the U.S. Supreme Court heard arguments in the Tennessee, Michigan, Ohio, and Kentucky same-sex marriage cases consolidated under Obergefell v. Hodges. There were two questions presented for argument: first, whether the Fourteenth Amendment requires a state to license same-sex marriages; and second, whether the Fourteenth Amendment requires a state to recognize a same-sex marriage that was lawfully licensed out-of-state.

Three attorneys argued on the first question. Mary Bonauto argued on behalf of the petitioners. Solicitor General Donald Verrilli argued for the United States, as amicus curiae supporting the petitioners. John Bursch, special assistant attorney general for Michigan, argued on behalf of the respondents.

Perhaps the liveliest and most contentious portion was Ms. Bonauto’s argument. The first question of the argument, from Justice Ginsburg, was an interesting one, as it implied some skepticism. She asked how the petitioners reconciled their arguments with the Windsor case, which “stressed the Federal government’s historic deference to States when it comes to matters of domestic relations.” The petitioners’ argument sparked substantial debate among the justices themselves, with the justices at times responding to questions posed for Ms. Bonauto before she could answer or supplementing her answers. There were notable exchanges between Justices Roberts and Ginsburg about the nature of “traditional marriage,” and later with Justices Scalia, Kagan, and Breyer about whether religious figures would be forced to officiate over same-sex marriages, where it appeared the debate was more between the justices than among the justices and Ms. Bonauto.

General Verrilli’s argument was considerably tamer, with the justices by and large letting him argue with fewer questions and more focused discussion of specific governing cases. Mr. Bursch’s argument drew less debate among the justices. The respondents’ argument justifying same-sex marriage bans was that there is a rational basis for such bans because children being raised by parents who are not married is a problem states are justified in addressing. They further argued that same-sex marriage decouples marriage from biological procreation, and thus by recognizing same-sex marriage, more children will be born outside of marriage. This argument was met with substantial skepticism by the liberal wing of the Court, as well as by Justice Kennedy. The four conservative justices were generally quiet during Mr. Bursch’s argument.

Two lawyers argued on the second question: Douglas Hallward-Driemeier of Ropes & Gray on behalf of the petitioners and Joseph Whalen, associate solicitor general of Tennessee, on behalf of the respondents. Both attorneys admitted that the second question would be moot if the Court found in deciding the first question that the Constitution prohibited states from not licensing same-sex marriages. The questioning during the petitioners’ argument focused on why if the Court found on the first question that there was no obligation for states to issue same-sex marriage licenses, it would be unconstitutional to decline to recognize marriages performed out of state. Even Justice Ginsburg asked why states would not be justified in treating out of state couples the same as they treated their own residents.

The questioning during the respondents’ argument focused on why the Full Faith and Credit Clause did not apply, and on how marriages in each state are almost universally recognized in other states. Justice Scalia quoted the Full Faith and Credit Clause and noted, “I’m so happy to be able to quote a portion of the Constitution that actually seems relevant.” Justice Roberts asked when the last time Tennessee refused to recognize an out of state marriage was (answer: 1970).


Keywords: LGBT, litigation, same-sex marriage, Supreme Court, Obergefell

Nick Kacprowski is with Alston Hunt Floyd & Ing in Honolulu, Hawaii.

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