Same-Sex Marriage Oral Argument Report*

April 29, 2015

Obergefell v. Hodges, No. 14-556 is now at issue, which means the Court has before it all of the written and oral arguments it will read and see. There’s a lots of post-argument writing out there. Here’s some of what I read which resonated.

Amy Howe blogs In Plain English for SCOTUSblog. Her piece, No Clear Answers on Same Sex Marriage, written within hours of the oral argument, lays out the issues and alignments very well. Also from SCOTUSblog is A view from the Courtroom, Same-Sex Marriage Edition by Mark Walsh. Mr. Walsh writes in the present tense, from soon before the oral argument until Chief Justice Roberts states: “The case is submitted.” Not a ton of insights, but Mr. Walsh definitely creates a “you are there” sense.

William Saletan writes for Slate. He nails the weakness at the heart of the anti-same-sex marriage crowd’s main argument—marriage has as its central purpose procreation—in Biological Baloney. Opponents of same-sex marriage argue that knowing whether a couple will or won’t have children requires an intrusion into private lives, but that with same-sex couples we do know they cannot procreate; thus, there should be no same-sex marriage. Mr. Saletan destroys this argument neatly and cleanly, relying heavily on this exchange between Justices Kagan and Ginsburg (aka Notorious RBG) and counsel for Michigan:

BURSCH: I think it would be an unconstitutional invasion of privacy to ask the question.

JUSTICE KAGAN: To ask if you want children is an unconstitutional invasion of privacy?

BURSCH: I ­–­ I think that would be the case, yes, just like it would be unconstitutional –­

JUSTICE GINSBURG: Suppose a couple, a 70­ year-old couple comes in and they want to get married.


JUSTICE GINSBURG: You don’t have to ask them any questions. You know they aren’t going to have any children.

Dan Roberts, for The Guardian, wrote Ruth Bader Ginsburg Eviscerates Same-Sex Marriage Opponents in Court. Here, Justice Ginsburg focused on a different issue, responding to the argument that marriage has always been between a man and a woman. Justice Ginsburg said:

We have changed our idea about marriage is the point that I made earlier.

Marriage today is not what it was under the common-law tradition, under the civil law tradition. Marriage was relationship of a dominant male to a subordinate female.

That ended as a result of this Court’s decision in 1982 when Louisiana’s Head and Master rule was struck down. And no State was allowed to have such a – such a marriage anymore.

Counsel for Michigan agreed with Justice Ginsburg that no state could be allowed to adopt such a law now.

Finally, Slate posted Uh-Oh, Marriage Equality Isn’t Looking as Certain as We’d Thought by John Culhane. Leaving aside the uncertainty associated with waiting for the decision, Mr. Culhane raises concerns about the validity of marriages in states covered by circuits which held that same-sex marriage was required under the principles set forth in U.S. v. Windsor, No. 12-307. Will these marriages be terminated? What happens to assets? Etc.**

Mark Rubin Writes remains on top of this story. I can’t begin to appreciate the anxiety this situation creates for same-sex couples and their families, and can only hope that the Court remembers the fact that these cases involve and affect real people.

*This post is an extra; however, it may end up being Friday’s piece, posted two days early.

**I have written wills for same-sex couples. They include a provision which states, in essence, that the terms of the will survive any termination of the marriage because a court holds that the couple’s marriage was not valid.

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