The Secret Messages Behind the SCOTUS Same-Sex Marriage Oral Arguments

06/02/2015 04:12 pm ET | Updated Jun 01, 2016

Sometimes reading the transcripts of the oral arguments of U.S. Supreme Court (SCOTUS) cases is like reading code messages of secret agents. The purpose of the questions and content of the answers are not readily apparent to the layperson, because there are underlying legal concepts that the lawyers are trying to advance. The Justices are attempting to elicit and refine the underlying legal arguments and their factual basis, as they "argue" among themselves and question the attorneys. There are also demonstrations of humor, collegiality, brilliance, confusion, and sometimes, first aid rendered by the Justices to counsel, to help them with their arguments when they stumble.

The transcript of the oral arguments with a word-for-word account of what counsel and the Justices actually said in the SCOTUS same-sex marriage arguments on April 28, 2015 in Obergefell v. Ohio Department of Health and the consolidated cases did not disappoint. Click here for a link to the transcript (hereinafter, "Transcript") of the oral arguments.

Counsel representing the Petitioners arguing in support of same-sex marriage rights were Mary Bonauto, and U.S. Solicitor General Donald Verrilli, Jr., amicus curiae, for the United States. The United States had "standing" in this litigation (and therefore, was allowed to argue in the case) on the grounds that it has a "strong interest in the eradication of discrimination on the basis of sexual orientation", as its brief states. Former Michigan Solicitor General, John J. Bursch, argued for the Respondents, the Ohio Department of Health, which had taken a position opposing same-sex marriage rights.

Shortly after the oral arguments began, there was an extended discussion about whether the constitutional amendments and legislation prohibiting same-sex marriage (all enacted after the Goodrich case in Massachusetts), had the purpose of demeaning gay people. (Transcript, page 8, Justice Alito.) Attorney Bonauto answered that question by asserting that they "...encompass moral judgments and stereotypes about gay people." (Transcript, page 9.) She then connected the change from rational-basis approach applied to sex discrimination cases (laws are presumed to be valid without strong reasons) to the "heightened scrutiny" required to sustain a law if there had been "invidious discrimination" against the class of people who's rights were being curtailed, or if a fundamental right is involved. (Transcript, page 9 - 10.)

The backstory to this is that under the 14th amendment, the very light "rational-basis" level of review applies to economic regulation and other laws affecting civil rights where the class of people have not faced "invidious discrimination", a legal term meaning treating a class of persons unequally in a manner that is malicious, hostile, or damaging. Discrimination animated by bias or prejudice is considered "invidious".

Under the "rational basis", a law merely has to be "rationally related" to a "legitimate state interest." It doesn't have to be a strong reason. It could be just a marginally believable, weak and barely supportable reason that is somehow connected to the law in question. It's a very light burden for a litigant to meet. That is the standard under which Attorney Bursch was attempting to argue.

But if there is a great danger that the legal classification results from impermissible prejudice or stereotypes (invidious discrimination), under the equal protection clause of the 14th amendment, or if it impinges upon a "fundamental right", the government must meet a higher standard - that the classification drawn (here, denying the right to same-sex marriage) is "substantially related to an important governmental objective." In many constitutional law cases, marriage has been found to be a fundamental right.

What followed was an extended discussion led by Justice Alito about cultures in the past that "did not frown on homosexuality" (Transcript, page 14), focusing upon the ancient Greeks. "So limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?" (Transcript, page 15, Justice Alito.) Even Justice Breyer entered the discussion, and asked Attorney Bonauto to explain why "for thousands of years" there had been no laws allowing same-sex marriage among "people who were not discriminating against gay people". (Transcript, page 16.) The justices were probing whether there was discrimination or hatred involved in those earlier cultures which did not have same-sex marriage.

However, something alarming happened in the gallery that took the wind out of the Justices' discussion implying a lack of negative intent or "animus" as motivating the denial of same-sex marriage rights.

According to media reports, immediately after Attorney Bonauto's argument (Transcript, page 27) there was an outburst from the visitor's gallery. News reports revealed that a protestor in the gallery shouted "You can burn in hell" at Attorney Bonauto. As he was dragged out of the courtroom by security officers, he shouted, "It's an abomination of God!"

After this outburst, the transcript showed Chief Justice Roberts' readiness to proceed. At that point, Justice Scalia commented, "It was rather refreshing, actually". (Transcript, page 28.) Maybe it was refreshing to Justice Scalia. By joking, he appeared to be unempathetic to how people in courtroom might have perceived the verbal attack. Also, by his off-hand comment, Scalia demonstrated tone deafness to the connection between the outburst in court and the arguments supporting same-sex marriage in the case. No, it was not refreshing, it was vicious and hateful.

When it was Attorney Bursch's turn to argue, he seemed to not be able to support the Respondents' argument as meeting even the lenient "rational basis" test and failed to show how the law in question was related to any legitimate state interest. Bursch was unable to convince the justices that same-sex marriage rights "harms conventional marriage" (Transcript, page 49), as he had argued in his brief. Or that marriage is inextricably linked to the ability to have biological children. (Transcript, page 50.) Or that denying same-sex marriage rights supports marriage because it is about "staying with their kids" and "staying bound to your child forever", and not about "emotion and commitment." (Transcript, page 51.)

When asked if it would be constitutional for a State to ask a couple if they intend to have children, and be denied a marriage license to them if they don't (Transcript, page 53, Justice Kagan), Bursch demurred, and said, that it would not be constitutional, and asking the question would be an unconstitutional invasion of privacy. (Transcript, page 54.) When asked by Justice Ginsburg if a 70-year-old couple should be allowed to marry, Attorney Bursch responded that "[A] 70-year-old man, obviously, is still capable of having children and you'd like [to] keep that within the marriage." (Transcript, page 55.)

Justice Roberts may have signaled his approach to the case when he asked Attorney Bursch if it is really necessary to get into sexual orientation discrimination (where the strict scrutiny is not yet established) to resolve the case. He noted " ...if Sue loves Joe, and Tom loves Joe, Sue can marry him and Tom can't." He then followed up with the question, "why isn't that a straightforward question of sexual [not sexual orientation] discrimination?" (Transcript, page 62.)

You can see where Justice Roberts may be going in this case. Strict scrutiny is firmly established in sexual discrimination lawsuits, but not yet established in sexual orientation lawsuits. A decision on the basis of sexual discrimination would establish no new 14th amendment jurisprudence standards, which is the type of judicial restraint that Justice Roberts ascribes to. I expect a concurrence by Justice Roberts based on sexual discrimination (not sexual orientation discrimination) when the decision is rendered in Obergefell later this month.

I imagine to many of the justices other than Justice Scalia, the heckler's outburst in the gallery was a watershed event that put into stark relief the prejudice and virulent religiously-incited animosity prevalent in our society against gay and lesbian people. It underlines why Federal civil rights protections, including the right to marry, are so desperately needed and why "strict scrutiny" should be the standard under which denial of same sex-marriage rights should be weighed against.

It is ironic and telling that the people of Ireland on May 22 voted to enshrine same-sex marriage rights into its constitution by an almost two-to-one margin. They seemed to have no problem in riding above complicated and esoteric legal arguments, as well as the proscriptions of the Church. Many of them, of all generations, old and young, voiced the reasons that they voted for same-sex marriage rights as because of their belief in fairness and equal civil rights. To paraphrase Justice Scalia in the Obergefell oral arguments, "Rather refreshing, isn't it?"