Obergefell v. Hodges: The First Half of the Gay Marriage Argument | Giftie Etcetera: Obergefell v. Hodges: The First Half of the Gay Marriage Argument

Tuesday, April 28, 2015

Obergefell v. Hodges: The First Half of the Gay Marriage Argument

This post is way off topic from my normal posts. I do that sometimes, on Tuesdays, but frankly am doing so on a Tuesday just by coincidence. The Supreme Court happened to hear arguments in Obergefell v. Hodges today. I read the arguments and listened to the transcripts, and I might have geeked out a bit.

For my regular readers, kindly ignore me while I let my nerdy inner lawyer shine through. We'll be back to regularly scheduled planner and productivity action tomorrow!

(As a lawyer, I need to say that this is mere opinion and should NOT be taken as legal advice.)

Without further ado, my take on the arguments, which can be heard and read here.

(Now, just to be clear, this is a blogger post and not a scholarly post. I'll try to be accurate and entertaining. You try to be open-minded and enjoy. Deal?)

Odds Before Oral Argument (according to me): 45/35/20

(45% chance of gay marriage being allowed outright; 35% chance of gay marriage not being a right, but states having to recognize other states' marriages; 20% chance of gay marriage not being recognized in any state other than those where it is currently legal.

These odds are created based on my knowledge of the justices and the law. I was top of my class in Constitutional Law and won a National Moot Court award in Constitutional Law, so this is my thing. On the other hand, I've been out of law school for years and have two kids, so grain of salt, people!)

*Mary L. Bonauto, the counsel for the plaintiff, is one of those amazingly smart, never flustered women that make the rest of us proud and filled with a sense of failure, all at once. The other lawyers were not memorable.

Odds (Revised): 50/30/20

Kick butt arguments make writing a ruling easy! Judges like easy.

*Chief Justice Roberts (expected to vote against same-sex marriage, but a potential swing vote) participated actively and asked intelligent questions.

Odds (Revised): 55/30/15

Roberts is listening to reason and wants to appear smart. He is smart. His ruling might go against his conservative nature.

*Justice Kennedy (the expected swing vote that will determine the outcome) made a point to compare the time period between Brown (finding separate schools based on race in violation of the 14th Amendment) and Loving (allowing interracial marriage) and between Lawrence (striking down anti-sodomy laws) and the present case.

Odds: unchanged.

Kennedy was going to say this anyway!

*Justice Ginsburg compared the institutional change to allow gay marriage to the end of the old subordinate relationship between husbands and wives.

Odds: unchanged

Justice Ginsburg is a smarty pants. She made exactly the same argument that I made weeks ago.

*Justice Alito is very excited by polygamous relationships and their implications. And he makes a decent joke about polygamous lawyers.

Odds: unchanged

Is anyone actually surprised at that? No.

*Chief Justice Roberts says, "...closing of debate can close minds...."

Odds: 50/35/15

That statement is a sign that he might accept the state recognition of other states' legal marriages argument.

*Justice Scalia said, "I'm concerned about the wisdom of the Court imposing through the Constitution...a requirement of action which is unpalatable to many of our citizens for religious reasons."

Odds: unchanged

Isn't that what the Supreme Court is supposed to do? If something was palatable, it would already be law! Somebody can't handle the flavor of something, or it would not be illegal.

*Justice Scalia cannot conceive of a situation in which gay marriage can be a right that does not cause a minister to HAVE to marry two men to each other.

Odds: unchanged

Really, Justice? No possible answer to that? Wow. However did you graduate law school? Also, the smart petitioners' attorney was quick to point out, and I agree, that the First Amendment clearly allows a clergyperson to not officiate a marriage that he or she does not want to officiate.

*While Justice Scalia is still pretending (one can hope) stupidity, Justice Kagan schools him on First Amendment rights.

Odds: unchanged

I enjoyed page 26 of the transcript. You, too, can watch Scalia get schooled.

*During a brief break, someone shouted "BURN IN HELL."

Odds: unchanged

This commentary is not noted on the official transcript, but clearly heard on the audio. It's the reason you should never just read a dry transcript!

*Justice Alito asks about siblings getting married.

Odds: unchanged

Alito is so much fun!

*On page 35 of the transcipt, Justice Scalia says something.

Odds: unchanged

It doesn't matter what he said. What does matter is what I wrote in the margins of the transcript: "wherein Scalia is an [word redacted for sensitive eyes, but it was an important body part in the Lawrence case]."

*Justice Kagan made fun of the poor attorney who was tasked with defending the state of Michigan's gay marriage ban on page 48 of the transcript.

Odds: unchanged

I kind of felt sorry for him! He seemed out of his league.

*The defense attorney argued that marriage is about keeping a couple bound to a child and not about a commitment between two adults.

Odds: 55/30/15

Seriously, there are some decent legal arguments for opposite sex only marriages. I don't think, from a legal perspective, that they are winning arguments, but they are reasonable.

This is not it. I wonder if Michigan is trying to lose the argument?

*Justice Breyer said some liberal stuff.

Odds: 55/25/20

No one was shocked. But someone in the middle might make him pay. I'm talking about you, Justice Kennedy.

*The defense attorney spent a lot of time arguing with liberal judges instead of addressing the concerns of the moderates.

Odds: 60/30/10

That is a bad strategy, and the opposite of the strategy of the plaintiff's attorney. It's a waste of time. The liberals and conservatives have already decided!

*The defense attorney missed a chance to argue that the bond between a child and a mother and a child and a father is different.

Odds: 60/30/10

The odds don't go down for him, as he has already lost his argument. But when discussing old court cases on pages 67 - 69, he should have pointed out that children need something different from people in different gender roles, and that the LGBTQ community is an excellent example of the importance of gender and gender identity.

*Justice Ginsburg reminded us that in 1982, the court ended Louisiana's Head and Master rule, where there was a dominant male and a subordinate female.

Odds: unchanged

As a native Louisianian, I am not proud of us. Also, this means my mom married my dad under that law. I'm trying to imagine her face if Daddy told her what to do! He'd be in trouble, state-sanctioned or not!

*There is a typo on p. 81 of the transcript. Justice Kagan says something that is attributed to someone else.

Odds: unchanged

I probably have typos in this post, as speed was a factor. Email me or message me privately, please. No one else needs to know!

FINAL ODDS: 60/30/10

I think, at least in terms of oral argument, that it was a clear win for the plaintiffs in favor of same sex marriage. But we shall see!



Unknown said...

OMGoodness, that was some hilarious commentary! I could just hear Ginsburg's voice "schooling" Scalia. LMAO! This is a pretty bold post. I love it. I need to print and read this.

Abigail said...

that was fascinating! tanks for taking the time to write it all up!

Inner Prop said...

I have no idea about anything in the legal system. It was great to have you discuss it like this and give a simple system of odds that are easy to follow. Thank you very much for doing this.

Unknown said...

I really want to know what people who are against gay marriage based on marriage being about children have to say about straight couples who can't, don't, or don't want to, have children. Not to mention divorced or widowed people who might want to remarry.

Josh LaPorte said...

Fun! Totally enjoyed your play-by-play commentary.