The Countdown: One Week

We should not let it pass unmentioned that there is one week left before oral arguments in Obergefell, when marriage equality has its day before the Supreme Court. Amy Howe of SCOTUSblog offers the press some advice on covering the case, but it’s pretty much worth a read for anyone who wants to know what’s about to happen.

About the briefs. There are a lot of them. Some amount of triage is essential to get ready for the oral argument. All of the briefs are housed here on the blog (organized for each case — Ohio, Tennessee, Michigan, and Kentucky) and on the Supreme Court’s own website.

In each of the four cases, the parties’ briefs are generally the most important. There are briefs on the merits by the plaintiffs challenging the state laws; they are known as the “petitioners” because they “petitioned” the Court to review the lower court’s decision upholding the state laws. On the other side, each set of state officials defending the laws – known as the “respondents” – filed briefs in their respective cases. The petitioners also get to file reply briefs, which are due at the Court on the afternoon of April 17.

In addition to the parties’ briefs, there are also over a hundred amicus, or “friend of the court,” briefs filed by everyone from the Cleveland Choral Arts Association and Facebook – both of which filed briefs in support of the challengers – to the U.S. Conference of Catholic Bishops and an advocacy group founded by Mike Huckabee, which support the states that seek to uphold bans on same-sex marriage. The United States also filed an amicus brief supporting the challengers.

With the possible exception of the Justices’ law clerks, no one will read all of these amicus briefs – and you don’t really need to either. Each amicus brief is required to contain a “summary of argument,” which lays out the issues that the brief will cover and generally gives you enough information to decide whether you want to keep reading or instead move on to the next one. The only exception is the brief of the United States, which always receives considerable attention from the Court (and which will participate in the oral argument on the marriage question).

And that’s just part of what you need to know before the show gets started. It is worth noting that the Court is allowing a longer session for oral arguments, two and a half hours split into two parts. The first will see the Court spend ninety minutes on the basic marriage question, with Mary Bonauto arguing on behalf of the same-sex couples, Solicitor General Donald Verrilli representing the United States, and John Bursch of Michigan explaining the case for the states. Of the three, only Bonauto will have rebuttal time.

The second part will have to do with the recognition question, and in this case it really would seem rather quite clear. Nonetheless, Douglas Hallward-Driemeier will stand for the challengers; Joseph Whalen of Tennessee will represent the states.

For a look at what we’ve heard before, and perhaps a hint of what’s in store, Zack Ford of ThinkProgress offers up a serving of strangeness. And despite the absurdity of a certain amicus brief, which, it should be noted, was obsolete before it was submitted―the democratic process has already brought same-sex marriage to multiple states―the crown still goes to Paul D. Clement, arguing on behalf of House Republicans in Hollingsworth, that gay marriage was wrong because “Unintended children produced by opposite-sex relationships and raised out-of-wedlock would pose a burden on society”, and further reasoned that same-sex couples “don’t present a threat of irresponsible procreation”.

What a show.

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Howe, Amy. “A reporter’s guide to covering the same-sex marriage cases at the Supreme Court”. SCOTUSblog. 20 April 2015.

Ford, Zack. “Ten Novel, Absurd, And Irrelevant Arguments Made In Supreme Court Briefs Against Marriage Equality”. ThinkProgress. 17 April 2015.

Savage, David G. “Gay marriage opponents take unusual tack with Supreme Court”. Los Angeles Times. 26 January 2015.

What It Sounds Like When Bigots Cry

Matt Baume makes the obvious point―

Four states will have to defend their marriage bans before the U.S. Supreme Court this month, and all four are still scrambling to figure out exactly how they’re going to pull that off. They filed a series of briefs with the court last week that are full of weird claims and arguments that just don’t make sense. Kentucky says that its marriage ban doesn’t discriminate, since gay couples are still free to marry someone of the opposite sex. This is exactly the same argument that was used to justify bans on interracial marriage, and it’s essentially saying: “You’re free to do whatever you want, as long as you actually do something else.”

Michigan’s brief is even crazier. They say that gaining marriage equality through a court order, rather than a popular vote, would be demeaning to gay couples. So, thanks, Michigan, for your concern. Tennessee is sticking with the argument that if gay couples can get married, then straight couples will stop raising children in stable families, somehow. And Ohio says that overturning the marriage ban would cause the people who voted for it to feel isolated. Sure.

―but given that he chose Gov. Steve Beshear for the article photo, it’s probably worth reiterating that the Kentucky Democrat isn’t exactly dedicated to the argument.

And, in truth, the title of Baume’s article―“The Four Worst Anti-Gay Marriage Arguments Ever”―really is a matter of opinion. That is to say, I’m not going to knock his summary, but I’m not sure what comes out of Michigan, Ohio, or Tennessee overcomes the absurdity standard set by Paul D. Clement in Hollingsworth, when he argued, on behalf of House Republicans that heterosexual irresponsibility was a reason to ban gay marriage.

Sigh. Yes, he really said that.

And, you know, sure, what Leigh Gross Latherow came up with for Kentucky―after the Attorney General refused to argue the case―is just one of those supremely stupid arguments. We might suggest nostalgia, one last go for the homophobic trolls.

Nor did Baume exactly miss it. Rather, his focus is on the cases coming before the Supreme Court―which reminds of the problem with the word “ever”―and we already know the arguments against marriage equality are so weak that even Justice Thomas has acknowledged the inevitable outcome. What we hear from Tennessee and Michigan is straightforward stupidity. Ohio isn’t even trying. And Kentucky? Well, Ms. Latherow as achieved a new standard in stupidity.

We might have hoped that the Sutton and Cook opinion in the Sixth Circuit would be the “swan song for traditionalist heterosupremacism”, but apparently that wasn’t good enough for Ms. Latherow, who certainly wouldn’t intentionally throw the case. And the vicious excuse for an argument popular among internet trolls six or seven years ago is apparently what she found at the bottom of the barrel.

Scrape away, Ms. Latherow; you’ve certainly achieved your place in history.

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Image note: Lebanon dispenses some manner of wisdom and confidence. (Darker Than Black: Gemini of the Meteor, episode 4, ‘The Ark Adrift on the Lake …’)

Baume, Matt. “The Four Worst Anti-Gay Marriage Arguments Ever”. The Huffington Post. 7 April 2015.

Savage, David G. “Gay marriage opponents take unusual tack with Supreme Court”. Los Angeles Times. 26 January 2013.

Nostalgia: The Mingling Scents of Bluegrass and Excrement

Ah, Kentucky. To the one, it is true that I believed nobody could top the stupidity of Paul Clement, arguing for House Republicans in Hollingsworth that irresponsible procreation by heterosexuals was a good reason to ban gay marriage.

To the other, there is Kentucky.

Kentucky Gov. Steve Beshear says the state’s ban on gay marriage should be upheld in part because it is not discriminatory in that both gay and straight people are barred from marrying people of the same gender.

In an argument labeled absurd by gay marriage advocates, Beshear’s lawyer says in a brief filed last week at the U.S. Supreme Court that “men and women, whether heterosexual or homosexual, cannot marry persons of the same sex” under Kentucky law, making the law non-discriminatory.

The argument mirrors that offered by the state of Virginia nearly 50 years ago when it defended laws barring interracial marriage there and in 15 other states, including Kentucky, by saying they weren’t discriminatory because whites were barred from marrying blacks just as blacks were barred from marrying whites.

The Supreme Court in 1967 rejected that argument in the historic case of Loving v. Virginia, in which Richard Loving, a white man, and Mildred Jeter, a black woman, were charged with a crime for marrying.

(Wolfson)