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.
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.