Tuesday, May 12, 2015

Reviewing Respondents' Briefs in Obergefell

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


Great introductions aren’t just for Petitioners’ briefs! In the same-sex marriage case, two Respondents’ briefs contain strong introductions that hit their main points immediately. In its brief in DeBoer, Michigan tries to de-emphasize the marriage question, instead relying on democratic principles:

This case is not about the best marriage definition. It is about the fundamental question regarding how our democracy resolves such debates about social policy: Who decides, the people of each state, or the federal judiciary? Because the U.S. Constitution is silent about how to define marriage, the issue remains where it has always been: with the people. When people of good will disagree—and they invariably do—they should engage in compassionate and civil dialogue in the public square. As Justice Holmes observed, our Constitution is made for people of fundamentally differing views. The issue of how to define marriage is no exception.

Similarly, in Tanco, Tennessee stresses the importance of State sovereignty:

In our federal system, States are equal sovereigns, and one State may not impose its policy choices on another State. This proposition has particular force in an area of traditional state concern, like marriage. Over the last 12 years, some States have expanded their definitions of marriage, and petitioners insist that the remaining States must fall in line and adjust their own policies to match that expanded definition. The Fourteenth Amendment does not compel such a result.


I’ve talked before about the importance of themes. Good themes are memorable and tie facts and arguments together.  

In its brief in DeBoer, Michigan advances its theme that the people, not the courts, should decide social issues, including whether to allow same-sex couples of marry. Michigan ties this theme on the importance of public debate and the democratic process into every legal argument it makes:

-As the public discussion shows, all sides of the marriage debate can present good-faith policy arguments supporting their definition. These varying views are the essence of democracy and the reason the Court should leave this decision where the U.S. Constitution places it: in the hands of the states….
-The people of Michigan have elected to prove legal support for and foster relationship that may lead biologically to children. The people could also elect to support a different marriage institution. That freedom is what the democratic process contemplates.

-Under rational basis review, courts give the legislative body—here, the people themselves—the benefit of every doubt: those attacking the rationality of the legislative classification have the burden to negate every conceivable basis which might support it.

Kentucky, in its Bourke brief, employs the same theme, stressing the importance of a “consensus” of Kentuckians:

-The statutes and constitutional amendment that are the subject of this litigation did not change the law in Kentucky. Rather, they codified what has always been the consensus of Kentuckians.

-The consensus of the Kentucky legislature and the citizens of the Commonwealth to maintain the traditional, man-woman marriage is no less a proper exercise of Kentucky’s sovereign authority within the federal system than New York’s exercise of its sovereign authority to change the definition [in Windsor].

-Windsor does not stand for the proposition that Kentucky (and all states like it whose citizens’ consensus is to maintain the traditional man-woman definition of marriage) is required to conform to the consensus of the citizens of California, Connecticut, New York, or Hawaii when their citizens move to Kentucky.

In-Depth Discussion of Sixth Circuit Opinion

In their briefs, Petitioners spent very little time summarizing the Sixth Circuit’s opinion, which they are seeking to overturn. In contrast, Respondents spend a great deal of time outlining that opinion. And their outlines aren’t simply disinterested. They write in a way that implicitly says: This opinion is sound.
Consider this passage from Ohio’s Obergefell brief:

Writing for the majority, Judge Sutton first noted that as a lower court he was bound by Baker v. Nelson. He then examined the question presented through a number of lenses—originalism; rational basis review; animus; fundamental rights; suspect classifications; evolving meaning—and concluded that not one of the plaintiffs’ theories makes the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.

Think about “number of lenses” and the listing of all those “lenses.” This says to the Court: The Sixth Circuit looked at this issue, and looked at it hard from every conceivable angle, but found the laws constitutional.

In the Tanco brief, Tennessee employs a different technique to make the same argument. Tennessee outlines the Sixth Circuit’s majority opinion using key language from the opinion and makes that language appear authoritative:

Determining that state laws codifying the traditional definition of marriage do not burden a fundamental right and do not involve a suspect classification…the court found that such laws have a rational basis. First, “awareness of the biological reality that couples of the same sex do not have children in the same way as couples of the opposes sexes and that couples of the same sex do not run the risk of unintended offspring suffices to allow the States to retain authority over an issue they have regulated from the beginning. Second, “a State might wish to wait and see before changing a norm that our society (like all others) has accepted for centuries.”

I’ll talk more about the writing techniques used in Respondents’ briefs in my next post.   

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