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A view from the Courtroom, Same-Sex Marriage Edition

It is going to be a long morning of argument at the Supreme Court on the same-sex marriage cases, but no one who has found a way into the Courtroom is inclined to complain.

The cases that collectively will go by the name Obergefell v. Hodges, from Kentucky, Michigan, Ohio, and Tennessee, include more than twenty plaintiffs made up of couples, two widowers, a few children, and one undertaker. Just a week or so before the arguments, a few of the plaintiffs were unsure whether they would get seats. So today, we’re not sure if they all made it in, but we can presume that at least some did.

Among their supporters, in the public gallery, are White House adviser Valerie Jarrett and Human Rights Campaign President Chad Griffin. In the bar section, Paul M. Smith of Jenner & Block, who argued and won Lawrence v. Texas twelve years ago, takes a seat. Lawrence, which overruled the Court’s key precedent upholding gay sodomy laws, will figure prominently in the arguments later this morning.

Smith is seated near Suzanne B. Goldberg of Columbia Law School and Pamela S. Karlan a Stanford law professor currently working at the Department of Justice. At the end of their row, seated adjacent to the first row of the press section, is the Los Angeles attorney Gloria Allred. She is lending a bit of California sunshine and glitter to the proceedings, along with Lt. Gov. Gavin Newsom of California, who is in the public gallery as he was two years ago for Hollingsworth v. Perry.

Theodore B. Olson, the former U.S. solicitor general who argued the Perry case for the same-sex litigants in 2013, is seated in the last row of the bar section.

There are some prominent people from the other side, whether they oppose same-sex marriage altogether or favor states’ rights to decide the issue. Sen. Mike Lee, Republican of Utah and a former clerk to Justice Samuel A. Alito, Jr., was expected here. John Eastman, the chairman of the National Organization for Marriage and a law professor at Chapman University in California, is here, as is Ryan T. Anderson, the thirty-three-year-old Heritage Foundation policy analyst whom The Washington Post described in a profile as “the conservative movement’s fresh-faced, millennial, Ivy League-educated spokesman against same-sex marriage.”

None of the retired Justices are here today. The VIP box will include Jane Roberts, the wife of Chief Justice John G. Roberts, Jr.; Mary Kennedy, the wife of Justice Anthony M. Kennedy, and Joanna Breyer, the wife of Justice Stephen G. Breyer.

We can presume that some of the above-mentioned people (or, for that matter, reporters in the press section) did not spend last night or any other recent nights outside the Court in a sleeping bag — although we do know that Pam Karlan did stand in line overnight to secure her spot.

The Court’s Public Information Office says that fifty-seven seats ended up being available for those who did wait in the public line. An undisclosed number of other people rotated into the courtroom today in the three- to five-minute line.

Just a few minutes before 10 a.m., a Supreme Court police officer makes the usual security announcement, but for an explanation that there will be a short break today between the two distinct questions in the case (the first being the question whether states must allow same-sex marriages, the second being whether they must recognize same-sex marriages that occur in another state). “If you leave during the break, you will not be readmitted to the courtroom for the second question,” the officer says.

When Mary L. Bonauto of Gay & Lesbian Advocates & Defenders takes to the lectern, she barely makes it into her third sentence before Justice Ruth Bader Ginsburg asks her about the language in United States v. Windsor stressing “the federal government’s historic deference to the states when it comes to matters of domestic relations.”

Bonauto responds that Windsor also made clear that state laws must respect the constitutional rights of individuals.
“And here 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,” she says.

The mention of “institution” leads Chief Justice Roberts to question Bonauto about whether her side is trying to change the fundamental institution of marriage from one with a “fundamental core” of the opposite-sex relationship.

This soon leads Justice Kennedy to weigh in with the word of the day: “Millennia.” And if the thousands of years suggested by that isn’t long enough, he phrases it as, “millennia, plus time.”

He notes the roughly ten years between Brown v. Board of Education and Loving v. Virginia, and then the same time between Lawrence v. Texas and this case.  (It’s really thirteen and twelve years, respectively, but who’s counting?)

“It’s about ten years,” Kennedy says. “And so there’s time for the scholars and the commentators and ­­the bar and the public to ­­engage in it. But still, ten years is—­I don’t even know how to count the decimals when we talk about millennia. This definition [of opposite-sex marriage] has been with us for millennia. And it’s very difficult for the Court to say, oh, well, we know better.”

Justice Ginsburg chimes in a little later, telling Bonauto, “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,” she adds. “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.”

The institution changed, more recently, to make it more egalitarian, Ginsburg says, “and same-sex marriage wouldn’t fit into what marriage once was.”

As Bonauto finished her argument later on, U.S. Solicitor General Donald B. Verrilli Jr. was just about to begin when there was what the Court’s transcript describes as an “interruption.”

A short, older man with white hair slicked back and heavy muttonchops stood and began loudly yelling. “The Bible teaches that you will burn in hell for eternity …” he says, as Court officers drag him out of the courtroom. “Homosexuality is an abomination.”

As with recent disruptions carried out in the courtroom  by anti-Citizens United protestors, there is murmuring, and a sense of anticipation to see whether this is a lone protestor or a member of a group. It seems the protestor is by himself.

Verrilli steps away from the lectern, waiting for a cue from the Chief Justice to continue.

“If the Court is ready,” he says, a few moments later.

“Well, we’re ready,” Roberts replies.

Justice Scalia leans forward. “It was rather refreshing, actually,” he says, and everyone laughs.

Meanwhile, the protestor continues his rant out in the hallway, loudly and continuously for several minutes. Even after it dies down, the yelling picks up again briefly a few minutes later.

Obergefell v. Hodges, No. 14-556

Protester (Art Lien)

We are barely a half-hour into a two-and-a-half-hour argument. Yet the rest seems to go by quickly.

There will be references to polygamy, homosexuality in ancient Greece, family life of the Kalahari, and unplanned pregnancies.

“Justice Kagan, even people who come into a marriage thinking they don’t want to have children often end up with children,” John J. Bursch, a special assistant attorney general of Michigan defending the state bans, says at one point.

And there will be much concern expressed about “the children,” both those of same-sex families and opposite-sex parents.

Verrilli says the states are arguing “that they want to exercise an attitude of caution because of concern about the welfare of children raised in same-­sex married households. But there’s a quite significant problem with that rationale, and it’s this: Right now, today hundreds of thousands of children are being raised in same­-sex households. That number is only going to grow. All of the evidence so far shows you that there isn’t a problem.”

Bursch says one problem is that “the out-­of-­wedlock birth rate in this country has gone from ten percent to forty percent from 1970 to today. And I think everybody would agree that that’s not a good result for children.”

When Justice Sotomayor tells him that Massachusetts data suggest that the comparable rate has remained steady in time since same-sex marriage was legalized there in 2003, Bursch suggests that is a short time-frame to draw any conclusions, Justice Kennedy says, “But you’re the one who brought the statistic up. And under your view, it would be very difficult for same­-sex couples to adopt some of these children. I think the argument cuts quite against you.”

After a five-minute break, the Justices return to the bench to address the recognition issue. Some of the energy and air seem to have been let out of the courtroom, though it is still packed.

The Chief Justice presses Douglas Hallward-Driemeier, representing the same-sex couples, about the practical effects of a ruling that the states must recognize same-sex marriages performed elsewhere.

“It certainly undermines the state interest that we would, assuming arguendo, have recognized in the first case, to say that they must welcome in their borders people who have been married elsewhere,” Roberts says. “Because we live in a very mobile society, and people move all the time. … In other words, … one state would basically set the policy for the entire nation.”

Hallward-Driemeier says “there would be many fewer such couples raising children within their borders than heterosexual couples who are raising children who are not biologically linked to them.”

When Joseph R. Whalen, an associate solicitor general from Tennessee, rises to defend the refusal of his state and others to recognize same-sex marriages from out of state, he is confronted by Justice Antonin Scalia with the Full Faith and Credit Clause in Article IV of the Constitution.

“I’m so glad to be able to quote a portion of the Constitution that actually seems to be relevant,” Scalia says gleefully.

Whalen says the clause’s reference to public acts has been interpreted to cover state laws, not marriage licenses.

“So there’s nothing in the Constitution that requires a state to acknowledge even those marriages in other states that ­­are the same?” Scalia asks.

When Whalen says, “That’s essentially correct, your Honor,” Scalia replies, “Really?” He sounds really dubious.

Scalia and Chief Justice Roberts do much of the heavy questioning of Whalen, who gives a halting performance.

The Chief Justice asks when Tennessee had most recently refused to recognize an out-of-state marriage. In 1970, involving a stepfather and stepdaughter, Whalen says.

Roberts notes that the states have long had distinctions in their marriage laws based on age and family relationship. “And still, despite that, it apparently is quite rare for a state not to recognize an out-­of-­state marriage,” the Chief Justice says.

This line of questioning will lead to speculation that Roberts is leaning against requiring states to allow same-sex marriages but toward a requirement that they recognize same-sex marriages entered into elsewhere.

Hallward-Driemeier delivers his rebuttal without interruption, from any Justice or protestor.

And at 12:29 p.m., the Chief Justice says, “The case is submitted.”

[CORRECTION:  An earlier version of this story suggested that none of the prominent spectators or lawyers mentioned in the post stood in line overnight to gain admission today.  However, that suggestion was incorrect, and we regret the error.]

Recommended Citation: Mark Walsh, A view from the Courtroom, Same-Sex Marriage Edition, SCOTUSblog (Apr. 28, 2015, 7:17 PM),