Boston lawyer Mary Bonauto stood before the Supreme Court of the United States on April 28, 2015, hoping to make history. The civil rights project director at Gay & Lesbian Advocates & Defenders (GLAD), Bonauto has spearheaded the legal fight for recognition of the rights of same-sex couples to marry for 20 years. In Goodridge v. Department of Public Health, she convinced the Supreme Judicial Court of Massachusetts to be the first state to recognize that right, doing so under its state constitution, the Massachusetts Declaration of Rights. Same-sex couples have been getting married in Massachusetts for more than a decade. Now, she seeks a ruling that the US Constitution protects the right to choose your marital partner, which will legalize same-sex marriage in all US states.
I can’t pretend to know what was going through Bonauto’s mind at this moment. Having argued once in the Supreme Court, on a much less important case, I can tell you what I would have been thinking: Damn! All the dreaming, the research, the memos, the briefs, the meetings, the strategy debates, the fights in state courts and state legislatures, the referenda, the wins, the losses, the celebrations, the tears, the incredible weddings, the clients, the lawyers and law students and others who did the work, the interviews, the speeches, the nights lying awake thinking about it, the days and weeks and months when we did nothing else, and we’re finally here. Let’s get it done.
“[S]tates do have primacy over domestic relations except that their laws must respect the constitutional rights of persons.”
Of the nine justices on the Court, Bonauto knew that the votes of four were virtually certain to be in her favor (Justices Ginsburg, Breyer, Sotomayor and Kagan), four justices were philosophically and intellectually hostile to her position (Justices Scalia, Thomas, Alito and Chief Justice Roberts) and one justice was a likely vote for her, but not certain (Justice Kennedy). Bonauto began with a very brief introduction, and then the justices (except for Thomas, who almost never speaks at oral argument) began to pepper her with questions and she was able to engage them directly on the legal issues to which she had devoted her life.
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The justices and lawyers sometimes spoke in a sort of legal shorthand, coded language in which one or two words or phrases encapsulate complex and nuanced constitutional law arguments, some of which have been raging for decades. Frequently, what they were talking about would not be obvious to non-lawyers. The oral argument was not merely about constitutional law, however. It was also about messaging. No one wants a repetition of the controversy engendered by Roe v. Wade, and so both sides here were at pains to paint a potential ruling in their favor in terms acceptable to as many people as possible. Indeed, as it turned out, there was more emphasis on messaging than there was on constitutional law.
Based on the published transcript of the hearing, we can unpack what happened during Bonauto’s argument. She was representing the petitioners challenging the decisions of the courts below that had rejected same-sex marriage, and she was the lawyer who made the first argument. I imagine that she began her presentation anxious about the hostile questioning she would get from the conservative justices. But the first question was a softball from an expected ally, Justice Ginsburg, and it allowed her to set the stage for one of the major issues in the case – federalism. Ginsburg asked what Bonauto made of the fact that the Court has stressed that the federal government historically deferred to the states in matters of domestic relations.
The question of what issues are for the federal government to decide and what issues are for the states has been one of the principal recurring problems of our form of government since the Constitutional Convention. In 1787, the crucial issue was slavery and the compromises that were struck to allow the states to determine whether to permit it were what enabled the union to form. The federal government was given specifically enumerated powers, and all the residual power of government was left to the states.
If the argument is about the definition of marriage, one must ask who gets to define it.
Subsequently, the relationship between the states and the federal government was substantially altered by the passage of the Fourteenth Amendment after the Civil War, which conferred national citizenship on any person born within the United States and constrained the states from depriving any person of the equal protection of the law, or depriving anyone of life, liberty or property without due process of law. The power of the states was further eroded by Supreme Court decisions during the New Deal, which expansively interpreted the clause in the constitution that gives the federal government power to regulate interstate commerce. Conservatives, however, have continued to argue that small government is better than big government, and local government is better than national government. The states’ rights argument today centers around the idea that there are certain issues, such as domestic relations, that have traditionally belonged to the states and that things are better left that way.
Ginsburg could easily anticipate how Bonauto would answer her question and I assume she was giving the lawyer a chance to articulate her position on this issue before the argument really got started. Bonauto’s answer was simple and direct: “[S]tates do have primacy over domestic relations except that their laws must respect the constitutional rights of persons.” The italicized language was a verbatim quote from Justice Kennedy’s opinion for the Court in United States v. Windsor, the 2013 case in which the Court held that the definition in the Defense of Marriage Act (DOMA) of marriage as between a man and a woman unconstitutionally denied federal benefits to couples that had married in a state that recognized same-sex marriage. Undoubtedly this was no accident, as Bonauto knew that Kennedy’s vote was the crucial one she needed to win this case. She then went on, “[H]ere we have a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families.” So Bonauto came out of the gate immediately making two basic points: the legal argument that same-sex couples have been denied equal protection of the law, and the rhetorical assurance that her position is consistent with family values.
Chief Justice Roberts asked the next question and he quickly attempted to change the nature of the debate. He asked whether the plaintiffs were really seeking to “join” an institution or whether they wanted to redefine it, given that marriage had historically been defined as a unity between a man and woman. Roberts’ apparent strategy was to shift the discussion from one about rights, and whether a class of people had been denied their rights, to a discussion about definitions. To the extent a persuasive case could be made that this is all just about the definition of marriage, an argument can be made that no one’s rights have been violated.
If the argument is about the definition of marriage, however, one still must ask who gets to define it, a matter to which Kennedy immediately turned, in the process revealing one of his hesitations about voting for Bonauto’s position. He said, “This definition [marriage is between a man and a woman] has been with us for millennia. And it – it’s very difficult for the Court to say, oh, well, we – we know better.” With this Kennedy put a very big problem on the table: whether the Supreme Court abuses its power in our democracy. This has also been a question of historic magnitude.
“People feel very differently about something if they have a chance to vote on it than if it’s imposed on them by the courts.”
From the beginning of the progressive era at the end of the 19th century, the Supreme Court had struck down as unconstitutional numerous legislative enactments regulating business, a practice it finally ceased in 1937 following the Great Depression and New Deal reforms. The received wisdom of most contemporary lawyers is that by invalidating those statutes based on its laissez faire economic philosophy, the Court usurped the role of the legislature in making policy decisions. Today, when the Court is called upon to recognize new rights, a question that inevitably arises is whether the justices are simply making law, ordinarily the job of the legislature, based on their own political or philosophical views. Major decisions that some citizens found liberating, such as Brown v. Board of Education or Roe v. Wade, were viewed as tyrannical exercises of power and deeply resented by others. Based on his decisions in earlier cases, including Lawrence v. Texas, where the Court struck down the state’s sodomy law, which only applied to homosexual sex, it is clear that Kennedy is respectful of the dignity of homosexuals and concerned about their rights. But he is worried about the Court’s institutional position.
Other justices also voiced their concern about this issue. Later in the argument, Scalia raised the issue forcefully, saying, “Well, the – the issue, of course, is – is – is not whether there should be same-sex marriage, but who should decide the point … and you’re asking us to – to decide it for this society.” When Bonauto pointed out that some state courts had recognized same-sex marriage under their state constitutions, Scalia countered, “[T]hat’s not the people deciding it. It’s – it’s judges deciding it.”
Roberts noted how rapidly same-sex marriage has been accepted across broad elements of society. But he cautioned, “[T]hat 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.” Here we can see the shadow that Roe v. Wade cast on the same-sex marriage argument – apprehension about how much controversy a ruling in favor of same-sex marriage would engender. Scalia and Roberts were articulating their deeply held ideological views about constitutional law – that the Court should play a limited role. But they were also making a rhetorical point: If we vote against Bonauto’s position, it’s not simply because we don’t like same-sex marriage; it’s because we want the people to decide.
Bonauto argued throughout her presentation that the definition of marriage must change because society itself has changed. Thinking about this in the days after the hearing, I wished the argument had been made even more pointedly. Bonauto might have said, “We’re not asking the Court to change the definition of marriage. We have already done that. All the millions of gay men and women who have come together in committed couples and raised children and made homes for themselves and participated as partners in their communities have done that. We just want the Court to recognize the reality of the society in which we live.”
As it developed, Ginsburg explained the decisive relevance of social change for same-sex marriage. Alito had repeatedly asked Bonauto how she accounted for the fact that until the end of the 20th century there had never been a culture that recognized marriage between two people of the same sex. She said, “times can blind,” and emphasized that it took over a hundred years after the passage of the Fourteenth Amendment for the Court to recognize that classifications on the basis of sex violated the US Constitution. But Ginsburg, who came to the Court after a lifetime as a feminist academic and a litigator for equal rights for women, provided the underlying explanation. It’s worth quoting her entire statement:
But you wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t – wouldn’t fit into what marriage was once.
When one of the justices is helping you at oral argument, you want to run with it and Bonauto did so. She immediately agreed with Ginsburg, adding that under the European system of coverture a woman’s legal identity was absorbed into that of her husband. She argued, “And again, because of equality and changing social circumstances, all of those gender differences in the rights and responsibilities of the married pair have been eliminated. And that, of course, is a system in which committed, same-sex couples fit quite well.”
Alito hammered away in repeated questions about the millennia-old definition of marriage to dramatize what Bonauto was asking the Court to do, but to make a separate point as well. In recent cases in which the Court has protected the rights of homosexuals, it relied on the principle that a bare legislative “desire to harm a politically unpopular group cannot justify disparate treatment of that group.” In 2013, the Court held the definition of marriage in DOMA unconstitutional because it found that the principal purpose of the law was to “impose inequality.” In 2003, it ruled the Texas law that made sodomy a crime unconstitutional because “moral disapproval of a group” is not a legitimate government interest that would justify a law challenged on equal protection grounds.
And in 1996, it had struck down an amendment to the Colorado Constitution that deprived homosexuals of protection under state anti-discrimination laws because the Court concluded it was “born of animosity toward the class of persons affected.” Petitioners had argued in their brief that some state laws restricting marriage to opposite-sex couples were based on animosity toward the LGBTQ community. Alito was making the point that many states defined marriage as between a man and a woman not with the intent of disparaging homosexuals, but simply because for millennia that is what marriage has been. In this way, he was distinguishing this case from the three just described, presumably in order to argue there was no basis in the Court’s precedents for a ruling requiring states to allow same-sex marriage.
The laws restricting marriage to a man and a woman are not neutral on their face; they explicitly exclude same-sex marriage.
Alito’s argument has no force beyond its rhetorical appeal. In essence he is saying, “Why should we have to change the laws? No one did anything wrong; no one intended to cause any harm.” It’s true that the Supreme Court has recently emphasized the need to find culpability on the part of public officials for plaintiffs to win money damages in civil rights cases, but this was not a suit for damages. There is a doctrine that requires proof of intent to discriminate when an equal protection challenge is made to a statute, regulation or practice that is neutral on its face, but operates in practice to disadvantage a minority group. But that doctrine was not in play here. The laws restricting marriage to a man and a woman are not neutral on their face; they explicitly exclude same-sex marriage. Bonauto did not have to prove there was any intent to harm homosexuals to invalidate these statutes.
What, then, did Bonauto have to establish in order to have these laws struck down as unconstitutional? Surprisingly, the justices never squarely addressed that question during her argument. The petitioners claimed that laws restricting marriage to opposite-sex couples both violated the right of homosexuals to equal protection of the law, and denied them liberty without due process of law, both protected by the Fourteenth Amendment. Constitutional law with respect to these claims is very complicated, but the justices did not ask Bonauto directly about the issues. The justices did not inquire about whether the laws could be sustained as long as there was any rational basis for them, or whether the states had to show there was a compelling government interest that the laws served, which would be a much higher standard for the states to meet. That standard would be required either if the Court concluded that homosexuals deserved protection similar to that afforded to people of color, or if it considered the right to choose a same-sex marital partner to be a “fundamental” liberty interest.
Forests have been felled to produce the paper on which these issues have been written about, and Bonauto was no doubt well prepared to talk about them. In their brief, the petitioners had argued that the higher standard applied, both because homosexuals deserved that level of protection from the law and because the right to marry had already been recognized as a fundamental liberty interest by the Court. They also claimed they were entitled to have the laws struck down under the lower standard because there was no rational or legitimate interest served by excluding same-sex couples from marriage. The issue of what the state’s interest in denying marriage to same-sex couples might be was explored at greater length in questions the moderate justices put to the lawyer defending the states’ laws, but not in questions to Bonauto.
There was just one point in the questioning that offered Bonauto an opportunity to articulate her position on the crucial Fourteenth Amendment issues. Justice Breyer took up Justice Alito’s point that the law everywhere for thousands of years has limited marriage to a man and a woman, even among societies where there was no discrimination against LGBTQ people, and asked pointedly why “nine people outside the ballot box” should require states that don’t want to do it to change their definition of marriage to include LGBTQ people. He asked why those states could not at least wait until they could see whether such a change was harmful to marriage in states that have made the change.
Alito asked whether recognizing the right of same-sex couples to marry would lead to marriages between siblings.
Bonauto said this is a question of individual liberty, citing the case of Loving v. Virginia, where the Supreme Court struck down the law against interracial marriage. This could have led to several questions probing the finer points of the fundamental liberty interest analysis. Instead, two of the conservative justices wasted most of the remainder of Bonauto’s time for argument on marginal issues. Alito repeatedly asked whether recognizing the right of same-sex couples to marry would lead to marriages between siblings, or between a group of two men and two women. But drawing those lines to protect the legitimate interests of society is not that difficult.
Scalia, a devout Catholic, stated that he was “concerned about the wisdom of this Court imposing through the Constitution a – a requirement of action which is unpalatable to many of our citizens for religious reasons.” He then asked several times whether a minister would be required to conduct a same-sex marriage even if he had religious objections to doing so. This was a frivolous argument, as Justices Sotomayor, Kagan and Breyer all demonstrated by pouncing on the issue, with Breyer pedantically citing the First Amendment’s proscription that “Congress shall make no law respecting the freedom of religion.” As Bonauto pointed out, the minister would have a First Amendment right to decline to perform the ceremony. Scalia, of course, is smart enough to know that, yet he used up almost 20 percent of Bonauto’s total time on this. It would appear that he was either burning up her time on purpose, or simply pandering to an audience of the religious right.
One of the challenges of oral argument for the advocate is to be able to make her essential points while at the same time answering the questions of the justices, which may or may not be of general importance. Bonauto was able at one point to move from her response to Alito’s group marriage questions to return to the “wait and see” issue Breyer had raised. She argued that “wait and see” is not a justification for failing to act under the Fourteenth Amendment because in the meantime the petitioners would be denied an opportunity to marry and would be confined to second-class status under the US Constitution. “Waiting is not neutral,” she said.
We don’t rely on popular voting to decide whether fundamental rights guaranteed by the constitution must be protected.
Roberts responded by conceding that the consequences of waiting are not neutral, but made the point referred to above that the pace of change has been rapid and made his pitch for the advantages of allowing the people to vote. The answer to Roberts is, as the Court has said in numerous cases, that we don’t rely on popular voting to decide whether fundamental rights guaranteed by the constitution must be protected. The essence of a constitutional democracy is that certain liberties and freedoms are guaranteed protection despite the fact that a majority might at some point in time wish to deny them to an unpopular minority. Solicitor General Donald B. Verrilli Jr., arguing on behalf of the US government, in support of the petitioners, later made this point as he closed his argument. He said, “But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now … it is simply untenable … to suggest that … they can be required to wait until the majority decides that it is ready to treat gay and lesbian people as equals.”
Bonauto closed her argument with a strong emphasis on the individual liberty issue, saying, “[I]n 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.”
We cannot, in this piece, conduct a similarly detailed analysis of the argument of Verrilli, who supported Bonauto’s position, or Attorney John J. Bursch, who represented the states and defended the laws that exclude same-sex couples from marrying. Although there was much that was interesting in those arguments, we must content ourselves with two points here. The first will summarize the essence of Bursch’s defense of the current marriage statutes, and the second will identify the issue that this writer believes will determine the outcome in this case.
Although Bursch may be a very good lawyer, the transcript of the argument demonstrates that he was in over his head in this case. Maybe it’s the hand that he was dealt. It’s not easy to argue against a result that appears to be historically inevitable. Indeed, Chief Justice Roberts may end up voting for same-sex marriage because he doesn’t want to be remembered as someone who stood against the tide of history. The difficult challenge for Bursch was to come up with some legitimate state interest that justifies limiting marriage to opposite-sex couples. The one he chose was that allowing same-sex marriages will undercut the principal rationale for opposite-sex marriages, namely to encourage such marriages so that children will be born within families with married parents. If we delink marriage from procreation, in this view, fewer people will marry to have children. As Bursch put it, “But the reason why there’s – there’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children outside of marriage.”
To be fair, this isn’t just Bursch’s argument. This is the best that everyone who opposes same-sex marriage could come up with. To put it bluntly, it’s a stupid argument, with no logical or empirical support, and the moderate justices had a field day poking holes in it. The only way it has any traction, and then not much, is to make the argument one step removed, so to speak. In other words, Bursch argued that the Court itself did not have to buy the argument; all they had to do was agree that rational voters could reach this conclusion, and that such a rational decision by the voters would justify the law. But even that is a stretch. Moreover, if a majority of the Court continues to say that marriage is a fundamental liberty interest, the justification for laws restricting access to marriage has to be more than minimally rational.
The key issue in the same-sex marriage argument is most likely to be human dignity.
The key issue in the same-sex marriage argument is most likely to be human dignity. Bonauto began her argument by saying that as a result of putting marriage off limits to same-sex couples, “the stain of unworthiness that falls on individuals and families contravenes the basic constitutional commitment to equal dignity.” Verrilli began his argument by stating, “The opportunity to marry is integral to human dignity.” Now what is interesting is that “dignity” is not a value that is mentioned in the US Constitution, including the Bill of Rights, although dignity is a value that is explicitly protected under the Universal Declaration of Human Rights, adopted by the UN General Assembly, is found in many constitutions adopted more recently than that of the United States, and is highly important in the jurisprudence of the European Court of Human Rights. Justice Kennedy has shown a great deal of interest in these sources in his previous decisions, and in his practice of teaching at the Salzburg, Austria, summer program on international legal studies for 25 years.
In Planned Parenthood of Southeastern Pennsylvania v. Casey, in the decisive opinion in which Kennedy joined Justices O’Connor and Souter writing the opinion for the Court affirming the right to choose an abortion originally established by Roe v. Wade, they wrote that “choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” In Lawrence v. Texas, where Kennedy wrote the opinion for the Court holding the sodomy law of Texas unconstitutional, he cited that language from the Casey opinion and added that adults are free to choose a homosexual relationship “in the confines of their homes and their private lives and still retain their dignity as free persons.”
During Bursch’s argument, Kennedy engaged him in a discussion of dignity that runs over several pages of the transcript. Bursch was concerned enough about the issue to deny five separate times that the states had any desire to deny dignity to anyone. Kennedy’s emphasis on dignity was paramount. He stated near the beginning of Bursch’s argument, “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.” Later he said, “I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage … It’s dignity bestowing, and these parties say they want to have that – that same ennoblement.”
It is risky to predict the outcome of Supreme Court cases based on what the justices say at the oral argument. But Kennedy’s commitment to the principle of human dignity and his understanding of its role in protecting intimate relationships run deep. If Bonauto and her colleagues succeed in winning the right for same-sex couples to marry, we can expect strong language from Kennedy defending the decision as essential to support human dignity. And an opinion on that ground will move US constitutional law closer to modern world jurisprudence that recognizes dignity as a preeminent value requiring protection.