There is a great deal of speculation on how the Supreme Court will decide the case of Obergefell v. Hodges, the case that will likely decide once and for all whether or not same-sex marriage bans at the state level are constitutional or not. Yesterday, they heard two and half hours of oral arguments, an unusually long session (most are only an hour.) It’s often difficult to read how the justices are leaning, particularly with justices like Justice Anthony Kennedy – generally considered the swing vote on this case – who is known for asking hard questions to attorneys on both sides. So, we’ll just have to wait until late June to find out.
What interested me most about yesterday’s arguments was the performance of the team that was arguing on behalf of the state of Michigan. As I wrote about earlier this month, despite having over 100 attorneys on his staff, Michigan Attorney General Bill Schuette went out and hired a private attorney to do his dirty work for him in front of the Supreme Court justices. Many have speculated that, if the SCOTUS rules against him, he didn’t want that loss on HIS hands.
Yesterday, that attorney, John Bursch of Schuette’s former employer Warner Norcross & Judd, presented essentially one argument and that is that the state’s compelling interest in marriage is to create a bond between children and their biological parents. His justification that this argument compels states to ban same-sex marriage is that by not doing so, the state would create a situation where marriage is so devalued that it will result in more children being born out of wedlock.
One more time for clarity: marriage equality results in an increase in the number of unwed mothers and children without two biological parents in the household.
Though you might think I’m exaggerating, I assure you that I am not. You can read Busch’s entire presentation HERE. It starts on page 41. Here are the essential bits:
[T]he marriage institution did not develop to deny dignity or to give second class status to anyone. It developed to serve purposes that, by their nature, arise from biology. […]
[W]hen you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences. […]
[T]he reason why 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. […]
If you delink marriage from creating children, you would expect to have more children created outside the bonds of marriage.
If you read the full transcript, and Bursch’s section goes on for 44 pages, you’ll see that he was not warmly received. He was repeatedly interrupted and challenged by Justices Kagan and Sotomayor. Even Justice Ginsberg went after him at one point, pointing out that the concept of marriage has evolved over time and is still evolving despite what he may wish to believe.
They say you can’t win a SCOTUS case during oral arguments but you can most definitely lose it. If that’s the case, John Bursch may well have done just that with his fumbling argument. And he is getting paid $50,000 do it, to essentially take the bullet for Bill Schuette.
For me, the most poignant statement of the entire two and half hour session came from attorney Mary Bonauto arguing for the plaintiffs. She was addressing the contention that this is an issue that the states should decide, not the Supreme Court:
[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.
UPDATE: Ian Millhiser at Think Progress points out that Bursch may well have “talked himself out of victory”:
Several justices appeared to disagee with Bursch’s understanding of how a “reasonable voter” would act, but Bursch was not making a novel argument. To the contrary, his argument closely resembled Justice Alito’s dissenting opinion in United States v. Windsor, which argued that the battle over marriage equality is really a battle between two incompatible views of marriage — a “traditional” view which sees marriage as an “exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship” and a “consent-based” view “that primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.”
Only one other justice, however, Justice Clarence Thomas, joined this part of Alito’s dissent, so Bursch’s decision to rely so heavily on an argument that only swayed two justices in Windsor was an odd strategic choice.
We can only hope it was a fatal choice.
[Peace Monument photo and meme by Anne Savage, special to Eclectablog]