More on Petitioners' Briefs in Obergefell

*This is the second in a multi-post series on the parties' briefs in Obergefell v. Hodges, the consolidated same-sex marriage case. The first post is available here.

Order of the Arguments

Petitioners in the four cases make the same general arguments:

The bans violate the Due Process clause because they deny same-sex couples the fundamental right to marriage.

The bans also violate the Equal Protection clause because they discriminate on the basis of sex or sexual orientation and don’t pass heightened scrutiny. Alternatively, the bans violate the Equal Protection clause because they are not rationally related to any legitimate government interest.

As those knowledgeable about constitutional law know, the Court has been hesitant (especially in recent years) in equal protection analyses to increase the number of suspect classes. Unless a class of persons is part of a suspect or quasi-suspect class, laws that affect them are subject to rational basis scrutiny. Sex is already a quasi-suspect class, but sexual orientation is not.   

Sketch of Obergefell Oral Argument
Sketch by Art Lein (www.courtartist.com)
Courtesy of www.scotusblog.com

While the arguments are similar, the order differs in, I think, meaningful ways.

The Bourke petitioners argue Kentucky’s refusal to issue marriage licenses to same-sex couples (1) violates their fundamental right to marriage; (2) violates the equal protection clause (sex and sexual orientation); and (3) does not pass even rational basis scrutiny. The Tanco petitioners make the same arguments in the same order, but add arguments that the bans violate the fundamental right to travel (a due process argument), are identical to DOMA in their harms (and subject to some form of heightened scrutiny), and frustrate principles of federalism.  

Photo of John Arthur & Jim Obergefell
Photo courtesy of www.worldreligionnews.com

The Obergefell petitioners take a different approach in starting with and emphasizing the similarities between the States’ recognition bans and the language of the Defense of Marriage Act (DOMA), which was struck down in Windsor. Then, they argue that the recognition bans (1) violate due process (fundamental right to marriage and protected liberty interests); (2) violate the Equal Protection clause (sexual orientation and sex); and (3) nonetheless fail under rational basis review. 

The DeBoer petitioners, however, start their argument with rational basis review. They first argue that the bans don’t pass rational basis scrutiny, then argue that heightened scrutiny should apply because sexual orientation is a protected class before concluding with the due process argument (fundamental right to marry).

I like the DeBoer and Obergefell approaches best. Here’s why:


April DeBoer & Jane Rowse with their children
Photo courtesy of www.glad.org

The Court decided Windsor just two years ago—a blink in jurisprudential time. In Windsor, the Court struck down DOMA by subjecting it to some heightened form of scrutiny, but did so without finding sexual orientation is a suspect class. I find it hard to believe the Court—made of the same members it was two years ago—will change its position now and find sexual orientation a suspect class. So I think the arguments for heightened scrutiny (while they must be made) aren’t going to convince a majority. Because those arguments likely aren’t the best the parties could make, I would not have lead with them in my brief.

I like the DeBoer approach because it recognizes that the Court
likely will apply a rational basis review (or some heightened scrutiny less than strict scrutiny) to the marriage and recognition bans. The DeBoer petitioners use their prime space (at the beginning of the brief) to argue the States cannot show a legitimate purpose for the ban rather than using that space for an argument the Court isn’t likely to accept. And the Obergefell approach is also a good one because it attempts to draw a connection between DOMA in Windsor and the recognition bans in these cases. The Obergefell brief discusses the “design, purpose, and effect” of the bans, which Justice Kennedy discussed at length in the Windsor opinion striking down DOMA for its impermissible “design, purpose, effect.” Windsor is arguably the most persuasive and on-point authority (along with Lawrence and Loving), so the Obergefell petitioners’ reliance on it is wise.                

Use of Non-Legal Sources

Non-legal sources can be very important, though many litigants, I suspect, don’t even consider using them. The DeBoer and Bourke petitioners both expertly cite non-legal sources to support their arguments.   

In addressing the States’ claim that the marriage and recognition bans further “responsible procreation” in opposite-sex married couples, the Bourke petitioners cite census data to show that opposite-sex couples can marry regardless of whether they intend to or even can have children. According to the Bourke census data, more than 6 million married U.S. women do not have children and more than half of married women are older than child-bearing age. The Bourke petitioners also use census data (from an amicus brief) to show that 125,000 same-sex households are raising children—more than 220,000 of them.

The DeBoer petitioners use non-legal sources in a different way. Their brief includes extensive summaries of the testimony of various experts offered at trial to support their positions. The DeBoer writers outline the testimony of expert psychologist Dr. David Brodzinsky, who testified that no research shows that children need parental role models of both genders to be healthy or well-adjusted. They also summarize the testimony of Stanford sociologist Michael Rosenfeld, who testified that the sociological consensus for at least the last 30 years has been that successful child rearing depends on the quality of parenting, availability of resources, and family stability, not gender or sexual orientation.

They even included statements of the testimony of:

-A Yale historian, who testified about the historical discrimination of gays and lesbians in the United States and Michigan

-A demographer, who testified about the demographics of gays and lesbians in the United States and Michigan

These are excellent uses of non-legal sources to support legal arguments.

Catchy, Interesting Passages and Sentences

The best brief writers use short, catchy sentences or juxtapositions to add interest and break up arguments that, while essential, might otherwise seem monotonous. Consider the follow passages:

-“Being married would mean little if the

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government were free to refuse all recognition to a couple’s marriage once the vows are made and the license is signed. When a couple knits their lives together through marriage…they vow to be wed until death—not states lines—do us part.” (Obergefell)

-“The real question is whether the majority may use the power of the State to enforce [moral views] on the whole society. It could not do so through the criminal law in Lawrence, and it cannot do so through the marriage law here.” (Bourke)

-“Kentucky has no legitimate interest in excluding same-sex couples from the institution of marriage simply to allow time to pass. Inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the law. Not for one day longer.” (Bourke)

-“This Court has the province and the duty to act when laws deny rights protected under the Fourteenth Amendment. When a minority is asserting core constitutional rights, it is no answer to say that the majority preferred that the minority not have those rights.” (DeBoer)

-“Marriage is a commitment like no other in society. It announces to the world a union that society understands. It grounds couples. It is a vow, recognized by the State, to stay together when times are hard….Marriage brings stability to families. It tells children that they have, and will always have, two parents. 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)

I could write much more about these briefs, but next week I’ll switch sides and be writing about Respondents’ briefs in the consolidated case.