This will be the first in a four-week series on the strengths and potential weaknesses of the briefs. I’ll necessarily include information about the arguments made by each side, but these posts will focus on the strategies and techniques employed more than the substance of the arguments made.
The first two posts will be dedicated to Petitioners’ briefs and the next two to Respondents’ briefs.
By way of background, the briefs address two different but related questions: (1) whether the Constitution permits states to ban same-sex marriages (the marriage question), and (2) whether the states must recognize same-sex marriages performed in other states (the recognition question).
My favorite introduction comes from the DeBoer brief and my second from the Obergefell brief. Drafting a strong introduction is important; the introduction is the first impression the reader has of the party, the lawyer, the factual and legal issues, and relief sought.
The introductions in the other briefs start with short descriptions of the parties, which is ok. But the DeBoer brief catches the reader’s attention immediately:
“The right to marry the person of one’s choice is a fundamental freedom that encompasses the right to establish a home, to bring up children and to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free persons.”
Boom. The writers leave no question of their position and make a striking impression on the reader from the first sentence.
The Obergefell brief also has a strong introduction:
Petitioners married seeking a cherished status that protects families throughout life, from cradle to grave. But Ohio refuses to respect the dignity and status conferred on petitioners’ marriages by other states. From the start of the marriage to the birth of children to the death of one spouse and beyond, Ohio erases the legal relationships of Petitioners’ families.
|The Roberts Court|
We all know the issues in this matter, and those issues are legal questions, not factual ones. But the parties’ stories are still important—they remind the readers why these issues are so important to the petitioners and put faces to otherwise faceless legal questions.
Following their cradle-to-grave theme, the Obergefell brief authors tell the sad story of James Obergefell and John Arthur, who were together for more than 20 years before Arthur died of ALS in 2013. The authors describe how Obergefell “had the honor” (his words) of caring for Arthur throughout his illness and how marrying was so important to the two that friends donated money so they could travel to Maryland on a medically-equipped plane. Arthur was so sick that he could not leave the plane, so the service was performed in the cabin while the plane sat on a tarmac in Baltimore.
The DeBoer story is equally touching. In that brief, the authors describe DeBoer and her partner, Rowse, who are nurses and state-licensed foster parents who adopted three children. The authors describe the birth and adoption of one of those children as follows:
On November 9, 2009, J was born prematurely at 25 weeks. Abandoned by his mother immediately after delivery, J weighed 1 pound 9 ounces, and remained in the NICU for four months with multiple health complications. Medical staff did not expect him to live, or to be able to walk, speak or care for himself if he did survive. When he was released from the hospital to come home with Petitioners, his condition required around-the-clock care from his parents—nurses DeBoer and Rowse—and other skilled therapists.
These touching stories remind the reader of the real people behind the litigation and, in the DeBoer case, drive home the point that these petitioners have already been deemed fit parents by the State of Michigan yet have been denied the right to adopt these children jointly because they cannot legally marry under Michigan law. And the story hints at, of course, the sacrifice made by these two women to bring up and care for children who might not otherwise have been adopted given their special needs.
Word Selection and Repetition
Petitioners in each case rely heavily on the Court’s ruling in United
States v. Windsor striking
down the Defense of Marriage Act (DOMA). In Windsor, Justice Kennedy, writing for
the majority, describes the impact of DOMA as creating “second-class”
marriages, denying same-sex married couples the “dignity and status” given to
them by the states that recognize their marriages, imposing a “disadvantage, a
separate status, and so a stigma” on same-sex marriages, and telling the world
that same-sex marriages are “less worthy” than heterosexual marriages.
The briefs track Kennedy's language in Windsor:
-“The recognition bans brand the marriages and families of same-sex couples for second-class treatment.” (Obergefell)
-“Ohio’s recognition ban strips married same-sex spouses and their children of…the security and dignity conferred by marriage.” (Obergefell)
-Petitioners families “are deprived of the status, dignity, security, stability and myriad material and legal protections that marriage brings.” (DeBoer)
-“Marriage brings stability to families….For children of same-sex parents, allowing their parents to marry dispels the notion that their families are inferior, ‘second tier.’ Marriage brings dignity to adults and children alike.” (DeBoer)
-Tennessee’s law “communicates…that the State regards petitioners and their families as second-class citizens.” (Tanco)
-“Tennessee’s non-recognition laws require the State to deny same-sex couples and their children all the protections, benefits, obligations, security, and dignity that Tennessee law provides for all other married couples….” (Tanco)
-The Kentucky law “demeans the dignity of families….” (Bourke)
-“[T]he purpose and effect of [the marriage ban] are to brand same-sex couples and their families as less worthy than other families…[and] relegates a class of couples and their children to a second-tier status…[that] stigmatizes” them. (Bourke)
These and similar phrases appear hundreds of times throughout the four briefs, emphasizing the connection between these cases and Windsor and advocating the same result.