More On Petitioners' Briefs in Obergefell

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

Using Windsor  

Edith Windsor leaving oral arguments in United States v. Windsor
Photo by Chip Somodevilla/Getty Images

As you may recall, Petitioners relied heavily on Windsor in arguing that the States’ recognition bans are just like DOMA. Respondents rely heavily on Windsor as well, but argue that Windsor actually advances the States’ position.

In its Obergefell brief, Ohio makes the argument this way:

The Court’s intervention here would undermine Ohioans’ liberty to decide this issue, just as Windsor said that DOMA had limited New Yorkers’ liberty to do so.

According to Kentucky:

Windsor instructs that if a state exercises its independent sovereign authority to offer same-sex marriages, then Congress lacks authority to strip the benefit from the citizens who had been conferred that benefit. Windsor does not compel all states, however, to provide that benefit or to recognize same-sex marriages authorized in other states. Instead, Windsor confirms that these decisions should be made on the local level…

Defining the Right

Petitioners’define the fundamental right at issue as the “right to marry.” The Court has previously recognized the “right to marry” as a fundamental right, so this definition supports the argument that the State bans violate their fundamental rights.

 

 

Respondents, expectedly, define the right much more narrowly: the “right to same-sex marriage.” Defining this right more narrowly advances Respondents’ interest:

Same-sex marriage is not a fundamental right because same-sex marriage is not objectively, deeply rooted in this Nation’s history and tradition and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. (Bourke)

 

Short, Crisp Sentences

Respondents recognize the power of short, pointed sentences to break up their paragraphs and add interest and emphasis. Take, for example, Ohio’s brief in Obergefell:

-Over time…some have proposed constitutional amendments on the ground that modern social life is such that there is today a need for vesting national authority over marriage and divorce in Congress. None succeeded…

-In other words, what Windsor described as the federal government’s novel interference with traditional state power played the central role in its ultimate conclusion that DOMA was motivated by animus in violation of the Fifth Amendment. This was nothing new. The Court often interprets constitutional provisions in a manner designed to preserve federalism and state power.

-The legislature undoubtedly has the power to enact what marriages shall be void, notwithstanding their validity in the state where celebrated. This exception has been applied in varied circumstances from marriages between relatives, to common-law marriages, to marriages by those lacking legal capacity. Ohio exhibits that tradition.

Interesting Words and Turns of Phrase   

Like short, crisp sentences, choice words and phrases add interest to otherwise dense sentences and arguments.

-But when petitioners and their amici urge this Court to conclude that the laws of States allowing same-sex marriage must prevail in every State, they threaten the federal design. (Tanco)

-A fundamental right is a right against government, not a right to government. (Hodges)

-Further, the rational basis test is not without teeth, nor is it a license to rubber stamp discrimination. (Bourke)



Photo by Aaron Escobar

-Jettisoning the “deep roots” requirement would transform the due-process doctrine into a quagmire with adverse consequences, predictable and unpredictable. (DeBoer)

Like many others, I’m eagerly awaiting the decision, which will be issued later this month!