Dignitas Versus Auctoritas

I

If I believed in a God, I would call Her damnation down upon my day job.

You see, the day job gets in the way of blogging. If I hadn’t had three summary judgment motions to oppose within two weeks mixed in between three all-day mediations during the same period of time, I would have been able to divert my time around differently. I’d have read and dug into the transcripts of the oral arguments in the same-sex marriage cases argued before the Supreme Court on Tuesday earlier. And I’d have teased out — I’m certain that I would have — that the fulcrum of the case is an emergent intellectual facet of the law is an old concept finding itself elevated into the law, called “dignity,” following a path staked out a century ago in eerily familiar fashion for another concept called “privacy.”

Unfortunately, I do have a day job, and the result of having to pay attention to actual clients who actually pay my bills instead of getting to devote my whole intellectual attention to the writing I do for pleasure is that I got scooped by Jeffrey Rosen at the Atlantic, who yesterday published his own insightful, smart, and dead-on-the-bullseye identification of “dignity” as the core of the arguments. Mr. Rosen even goes so far as to point out that describing dignity as a dimension of liberty may well wind up having a dark side that might later be regretted by liberals, progressives, and others who would applaud a finding in June of a Constitutional right to same-sex marriage. Thus, he occupied the territory of ambiguity and concern about intellectual origins that I usually stake out for myself.

Not that I can blame Mr. Rosen for doing so. His analysis is exactly right even if some of the nuances and forebodings he makes are not precisely what I’d say. Better, his exposition and explanation are more concise and digestible by the intelligent layperson than what I’d likely have come up with blazing the trail on my own. Seriously, go read it: here’s that link again. I doubt you’ll find a better, more easily readable analysis of this idea, offering the same level of legal insight, anywhere else.

Since Mr. Rosen has occupied this portion of the intellectual field, I’m going to have to approach the arguments from a different slant. So, let’s return to what happened in the Obergefell arguments will return to the fore, bearing in mind that we inevitably must return to this concept.

 

II

Over the course of the last twenty or so years in which this issue has been in the realm of public debate, the pro-SSM and anti-SSM arguments have become fairly standardized. Bear with me while I run through them quickly here. Let’s start with the pro-SSM arguments, all of which I fundamentally agree with, although no preference should be inferred from the order in which I have set forth the list:

1. The Argument from Equality: People should be treated equally by the government unless there is a very good reason for the government to treat them differently. People who want opposite-sex marriages can have them. There’s no good reason not to treat people who want same-sex marriages the same way.

2. The Argument from Dignity: Prohibitions on same-sex marriages single out LGBTQ people for obloquy and inferior treatment, which is not justified in this case. Affording LGBTQ people dignity equal to that afforded to heterosexuals is imperative to what this country is all about.

3. The Argument from Fundamental Rights: Basic civil liberties like voting and free speech are not subject to democratic or legal restriction (except under very dire and extreme situations). Marriage is such a civil liberty, so must not be restricted (any more than is absolutely necessary).

4. The Argument from Harmlessness: Same-sex marriage is a private decision between consenting adults, which causes no harm to anyone else and which implicates no substantial legitimate governmental interest. Therefore, it should be permitted.

5. The Argument from Domestic Bliss: If denied the ability to marry, LGBTQ people will structure their own lives and communities largely without the pair-bonding and life-planning available to heterosexuals, diminishing the quality of their lives for no good reason.

6. The Argument from Legal Uniformity: If one State has SSM and another does not, we have the legally untenable situation of people being married in one State but simultaneously not married in another, which creates the potential for all sorts of havoc. Therefore, SSM should be for everyone, everywhere.

So far, the Argument From Equality and the Argument from Dignity appear to be the ones winning the day, at least in the courts and, in my opinion, out in the body politic. On the briefs, the plaintiffs relied heavily on both of these. The Government relied almost exclusively on the Argument from Equality.

Arrayed against this, I’ve teased out six different anti-SSM arguments that have all been made with sobriety at one point or another through the entirety of my professional life, which I’m just now realizing has been only a little bit longer than the lifespan of same-sex marriage as a political issue:

1. The Argument by Definition (also known as The Argument from History): Marriage is between a man and a woman, has always been so. That’s just what marriage is and it’s silly to insist on putting the same label on something different.

2. The Argument from Procreation: Marriage exists to encourage the creation of families. Same-sex couples can’t make babies. So marriage, or not marriage, isn’t as important for them.

3. The Argument from Democracy: Whether same-sex marriage should be permitted, or not, is something we should leave up to the democratic process. If that process results in a ban on SSM, oh well, you can always try again next election. An important corollary to this is that democracy occurs on the state level.

4. The Argument from Prudence: We alter fundamental social institutions such as marriage at very grave peril, and we cannot be certain of whether introducing SSM into our culture will hurt people in ways we cannot now predict. We should be cautious and not do this until and unless we’re really sure it will create a net benefit to everyone.

5. The Argument of the Slippery Slope: If we permit same-sex marriages, there will be no intellectually honest way to avoid granting polygamous or incestuous marriages as well, which are undesirable for all sorts of reasons, even if the proposed marriages are amongst adults who truly consent.

6. The Argument from Conscience: A person might wish to condemn SSM as morally wrong, as when they feel compelled to do so by way of religious creed. Writing SSM into the law compels such people to afford dignity and recognition to something they personally believe to be morally wrong, legally overriding their own consciences.

I think that’s pretty much it. Of these, I personally have pretty much always found the Argument from Conscience and the Argument from Prudence to be the ones most worthy of intellectual cachet when invoked by an anti-SSM interlocutor. YMMV. The states relied heavily on the Argument from Democracy and the Argument from Procreation in their briefs. In Tuesday’s oral argument, we got a veritable smörgåsbord of these.

Predicting how these will play out in front of the Nine is the next challenge.

 

III

The conventional wisdom is that no one is really going to be able to persuade Chief Justice John Roberts, Justice Antonin Scalia, Justice Clarence Thomas, and Justice Samuel Alito to do anything but vote against a finding of same-sex marriage as an individual right protected by any portion of the Constitution; on the other hand, no one is going to be able to persuade Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan to do anything other than vote in favor of such a ruling. Now, it’s true that both Roberts and Breyer did a little bit of flirting with the side they aren’t anticipated to vote with. That’s nothing to get excited about, believe me.

Which means, it’ll all come down to Justice Anthony Kennedy.

Justice Kennedy is directly on the spot, inescapably torn between his basic conservatism of upholding the state as a bulwark of society, and his push to make the judiciary an instrument of needed social justice; Kennedy the Federalist must wrestle with Kennedy the Civil Libertarian. In his recent opinion in U.S. v. Windsor, deference to traditional state powers dovetailed with extending civil liberties, resulting in an invalidation of the Federal Defense of Marriage Act. It was, at least in retrospect, an easy call to see Justice Kennedy making after looking back over a career of impressively strong refereeing between Federal and State powers, and a career of equally strong and impressively-written opinions affirming that LGBTQ Americans are entitled to equal treatment by their government, whether their governments act through judicial decision, legislation, or even direct democracy. SCOTUSblog’s Lyle Denniston, who was present for the argument and is an experienced observer of individual Justices’ mannerisms during argument, describes Justice Kennedy as visibly uncomfortable and wrestling with both sides of the issue.

And the tea leaves Justice Kennedy scattered in the wake of his questions leave everyone who has looked at the argument itself unable to confidently predict how he will ultimately vote. And the oral arguments are the last chance anyone has to glean what he might be thinking, and to offer an argument to sway him one way or the other. A great deal comes down to the skill with which the three attorneys who argued before the Court on Tuesday listened to and answered his questions.

Obergefell was a particularly raucous session of oral argument before the High Court, as these things go, the sort of thing that makes the more precious among the self-appointed protectors of the decorum of the Court repeatedly clutch at their pearls. A protestor in the gallery jumped up and shouted at the end of Ms. Bonauto’s argument that Justice Kennedy would be sent to Hell if he voted in favor of same-sex marriage, he was hustled out of the courtroom by security.[1] Justices interrupted one another, counsel spoke over the Justices without any apparent sanction by the Chief, and of all people Sonia Sotomayor — hardly a shrinking violet in terms of the force of her personality — had to struggle three times to get a word in edgewise amongst her colleagues and the attorneys.

In such an environment, under-prepared, under-skilled lawyers would get roasted and eaten alive. Fortunately, we’re not talking about just any lawyers.

 

IV

For the plaintiffs — most prominently members of same-sex couples seeking the right to marry, challenging various state bans against same-sex marriage — is Mary Bonauto, who is a MacArthur Foundation fellow (!), a lecturer at Harvard Law School, and Civil Rights Project Director at the Boston-based Gay & Lesbian Advocates & Defenders (GLAD) since 1990. (Interestingly, Ms. Bonauto’s wife is a professor of law at the University of Maine with a very substantial academic pedigree to match.) Ms. Bonauto’s most significant claim to fame before yesterday was that she was lead counsel in the groundbreaking Goodridge v. Department of Public Health case which resulted in Massachusetts being the first state to grant full marriage rights to same-sex couples, way back in 2004.

So we SSM advocates would seem to have plenty of reason to be confident that the attorney representing our favored side has all the very best qualifications and experience to argue this very issue. So if we assume that the questions Justice Kennedy asks, and the answers he gets to them, are the best insight we can have into what the Court’s ruling will be, there is cause to quickly draw in a sharp breath of air.

JUSTICE KENNEDY: One ­­– one of the problems is when you think about these cases you think about words or cases, and ­­ and the word that keeps coming back to me in this case is ­­ is millennia, plus time. First of all, there has not been really time, so the Respondents say, for the Federal system to engage in this debate, the separate States. But on a larger scale, it’s been ­­ it was about ­­ about the same time between Brown and Loving as between Lawrence and this case. It’s about 10 years. And so there’s time for the scholars and the commentators and ­­ and the bar and the public to engage in it. But still, 10 years is ­­ I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And it ­­ it’s very difficult for the Court to say, oh, well, we ­­ we know better.

MS. BONAUTO: Well, I don’t think this is a question of the Court knowing better. When we think about the debate, the place of gay people in our civic society is something that has been contested for more than a century. And in this ­­ in the last century, immigration exclusions, the place of gay people in public employment and Federal service, these are all things that have been contested and ­­ and you can ­­you can say 10 years of marriage for Massachusetts, but it’s also in the 1970s that the Baker case from Minnesota reached this Court, and that’s over 40 years ago. And it was over 20 years ago that the Hawaii Supreme Court seemed to indicate that it would rule in favor of marriage, and the American people have been debating and discussing this. It has been exhaustively aired, and the bottom line is that gay and lesbian families live in communities as neighbors throughout this whole country. 6:18-8:3 [2]

Kennedy’s first question in the case is a restatement of the Argument by Definition. That’s a tough one to argue against when it’s presented front and center, because it carries a pretty strong assumption that the maker of that argument has already decided that marriage can only be between one man and one woman.

For Court-watchers, this is a remarkably long question, and a remarkably long answer. But it doesn’t stop there. All of Kennedy’s questions must feel like ice-cold daggers directly to the hearts of SSM advocates:

JUSTICE KENNEDY: But it’s ­­– you ­­– you said that, well, marriage is different because it’s controlled by the government. But from a historical, ­­from anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read the ­­ about the Kalahari people or ­­ or ancient peoples, they didn’t have a government like this. They made it themselves and it was man and a woman.

MS. BONAUTO: There were certainly prior to ­­ there were marriages prior to the United States forming and we recognize that. But when our nation did form into this union in 1787 and then when it affirmed the Fourteenth Amendment in 1868, that’s when we made our nation collectively made a commitment to individual liberty and equality. 15:12-16:2

Twice, Justice Kennedy challenges Ms. Bonauto with the Argument by Definition. That’s not to say these weren’t the only arguments that Ms. Bonauto had to confront. He went on to confront Ms. Bonauto with the Argument from Prudence, to which she responds with the Argument from Harmlessness:

JUSTICE KENNEDY: Well, part of wait and see, I suppose, is to ascertain whether the social science, the new studies are accurate. But that ­­ it seems to me, then, that we should not consult at all the social science on this, because it’s too new. You think you say we don’t need to wait for changes. So it seems to me that if we’re not going to wait, then it’s only fair for us to say, well, we’re not going to consult social science.

MS. BONAUTO: Well, two points on that, if I may. In terms of waiting, I do think the effect of waiting is not neutral, it does consign same­-sex couples to this outlier status, and there will be profound consequences that follow from that. But then setting that aside vis­-à­-vis the social science, there have been trials, of course in the Michigan case, in Arkansas, in Florida about adoption bans. These issues have been aired repeatedly, and there is, as you all have heard, a social science consensus that there’s nothing about the sex or sexual orientation of the parent that is going to affect child outcomes. And this isn’t just research about gay people. It’s research about, you know, again, what is the effect of gender, it goes for 50 years. 20:16-21:14

The fact that Kennedy followed up two Argument by Definition questions with an Argument from Prudence must surely have been a bit dispiriting to Ms. Bonauto when she eventually had a moment to reflect on it. That moment was almost assuredly not during the argument itself. She too many questions from too many other sources, including the Slippery Slope from Justice Alito and the Argument from Conscience from Justice Scalia and rather a lot more of the Argument by Definition from Chief Justice Roberts. So her mind would have been quite full while she was standing, and only after her time was up, and Solicitor General Verrilli, dressed in resplendent morning dress, got the floor, could it have settled in her mind that Kennedy was asking about the most self-answering question he could have been that she could not possibly directly rebut — and note that she didn’t respond by directly saying “Marriage, at least as a matter of law, can mean whatever we decide it means. This is what the Constitution requires of us when making that decision: treating people equally.”

Ah well, the best argument you make is always the one that occurs to you driving back to the office. Which doesn’t mean you won’t win — if the case is under submission, you’ve got a chance.

 

V

That Government’s case was argued personally by the Solicitor General of the United States of America is an indicator of the paramount political importance of the matter.

Particularly important in the light of the idea that we’re looking at “dignity-as-liberty” emerging into the law, General Verrilli urges the Court to adopt same-sex marriage as a Constitutional right on narrower grounds than does Ms. Bonauto for the plaintiffs: the Government has adopted the position that the Equal Protection Clause, alone, compels this result.

The Government’s argument began with a remarkable amount of deference from the bench. General Verrilli got to make all three points of his argument before having to field an actual question. Those three points were a refutation of the Argument from Democracy with the Argument from Fundamental Rights, a refutation of the Argument from Prudence with the Argument from Legal Uniformity put in the context of racial desegregation, and a cocktail of the Argument from Fundamental Rights and the Argument from Dignity. And it was on this last point which prompted the all-but-certain swing voting member of the panel to jump in:

GENERAL VERRILLI: And third, I want to expand on what Ms. Bonauto said, that ­­ that ­­ and I think you, Mr. Chief Justice, you did recognize this, that the decision to leave this to the political process is going to impose enormous costs that this Court thought were costs of constitutional stature in Windsor. Thousands and thousands of people are going to live out their lives and go to their deaths without their States ever recognizing the equal dignity of their relationships.

JUSTICE KENNEDY: Well, you could have said the same thing 10 years ago or so when we had Lawrence. Haven’t we learned a tremendous amount since ­­ well, since Lawrence, just in the last 10 years?

GENERAL VERRILLI: Yes. And, Your Honor, I actually think that’s quite a critical point that goes to the questions that Your Honor was asking earlier. I do think Lawrence was an important catalyst that has brought us to where we are today. And I think what Lawrence did was provide an assurance that gay and lesbian couples could live openly in society as free people and start families and raise families and participate fully in their communities without fear. And there are ­­ two things flow from that, I think. One is that has brought us to the point where we understand now, in a way even that we did not fully understand in Lawrence, that gay and lesbian people and gay and lesbian couples are full and equal members of the community. And what we once thought of as necessary and proper reasons for ostracizing and marginalizing gay people, we now understand do not justify that kind of impression. 30:1-31:7

Well, now. Here we have something that seems a bit different from Justice Kennedy: he appears to be inviting a refutation of the Argument from Prudence, but he wants to hear that argument refuted with something different than the Government’s first attempt, which was to deploy the Argument from Legal Uniformity. So General Verrilli instead tries the Argument from Dignity which was the central intellectual theme in Lawrence — and works in no small amount of flattery for the author of the opinion in Lawrence who happens to be, mirabile dictu, the very same Justice who just asked him the question. Credit where it’s due, General Verrilli: I’ve criticized you in the past, but this was smooth. Will General Verrilli handle the next question from Justice Kennedy with similar aplomb?

JUSTICE ALITO: Let me ask you ­­–

JUSTICE KENNEDY: I have one question. I see your time is going out. I’m interested in your comments on Glucksberg, which says what we should have to define a fundamental right in its narrowest terms. A lot of the questions that we’re ­­– we’re asking your colleague in the earlier part of the argument were ­­– had ­­– had that in mind, I think. What ­­– what do we do with the language of Glucksberg that says we have to define it in a narrow way?

GENERAL VERRILLI: Justice Kennedy, forgive me for answering the question this way. We do recognize that there’s a profound connection between liberty and equality, but the United States has advanced only an equal protection argument. We haven’t made the fundamental rights argument under Glucksberg. And therefore, I’m not sure it would be appropriate for me not having briefed it to comment on that.

JUSTICE KENNEDY: Well, can you tell me why you didn’t make the fundamental argument?

GENERAL VERRILLI: Well, because we think ­­well, because we think while we do see that there is, of course, this profound connection, we do think that for reasons like the ones implicit in the Chief Justice’s question,[3] that this issue really sounds in equal protection, as we understand it, because the question is equal participation in a State conferred status and institution. And that’s why we think of it in equal protection terms.

And if I could just — in the ­­ in the little time that I have left, I’d like to suggest this, that what the Respondents are ultimately saying to the Court is that with respect to marriage, they are not ready yet. “And yes, gay and lesbian couples can live openly in society, and yes, they can raise children. Yes, they can participate fully as members of their community. Marriage, though, not yet. Leave that to be worked out later.” But the Petitioners –­­ the Petitioners, these gay and lesbian couples are ­­–

JUSTICE SCALIA: Or not. Or not. I mean, that’s not what they are saying. They are saying leave it to the people. It will be worked out later or not.

GENERAL VERRILLI: But what these gay and lesbian couples are doing is laying claim to the promise of the Fourteenth Amendment now. And it is emphatically the duty of this Court, in this case, as it was in Lawrence, to decide what the Fourteenth Amendment requires. 38:16-40:14.

I’m not prepared to call that a home run answer so much as a ground-rule double; a solid hit with the return invocation to Lawrence and an echo of Marbury v. Mardison to add a gloss of legitimacy to the ruling that Justice Kennedy is still apparently hesitant to make. But he didn’t really get at what Kennedy was really asking: “Okay, let’s say I decide that the best argument is the Argument from Dignity. Tell me how to write my opinion in the way that defeats the Argument from Democracy by the narrowest possible margin.” Verrilli doesn’t quite do that here. But it is a tea leaf more promising for SSM advocates and less promising for SSM opponents (or Federalism advocates, if you prefer).

Now, you may have already decided that I’m a horrible person for reducing the debate about one of the most critical and prominent civil liberties issues of our lifetimes into a series of six essentially standardized arguments and the Supreme Court’s argument as though the arguments were being deployed against one another like so many Pokémon cards. If so, bear in mind that Chief Justice Roberts and Justice Kennedy and General Verrilli all tacitly do the same thing here, attaching labels to the arguments to talk about them.

So after saying that gay people shouldn’t have to wait for democracy to catch up with their fundamental rights, General Verrilli’s time expires, and the focus shifts to Mr. Bursch on behalf of the respondent States.

 

VI

On behalf of the states, and thus urging that same-sex marriage bans may be adopted by individual states consistent with the Constitution, is John J. Bursch, currently in private practice in a prestigious firm based in Grand Rapids, Michigan. He previously served as Solicitor General for the state of Michigan and is acting in this case by appointment as a Special Deputy Solicitor General for the state. Mr. Bursch’s C.V. is deeply impressive. Notably, Mr. Bursch is apparently not sponsored by nor arguing on behalf of a political or religious-rights advocacy group. His client is the State of Michigan and it is not apparent that he has either personal opposition to nor personal support of same-sex marriage, other than that he believes it ought to be adopted, if at all, through democratic means rather than imposed by a court.

This readily shows through in his argument, which is very thoroughly based in the concepts of the Constitutional imperatives of states exercising plenary power over marriage in the two-tier Constitutional scheme, and the foundation of democracy upon which the Constitution is based. His arguments have clearly been calculated to appeal directly to the best fulcrum of the case available to uphold the state’s SSM ban: Justice Kennedy’s scheme of balancing State and Federal powers and respect for the ability of people in a democracy to self-govern. His preferred positioning would have been that he was there to argue in favor of the right of an individual to vote for a policy that she prefers. Which is why he was probably uncomfortable under questioning by the swing vote on the Court:

JUSTICE KENNEDY: But that [drawing a distinction between a couple who marry for a potentially impermanent emotional bond and a couple who marry for the purpose of jointly raising children]­­ assumes that same­-sex couples could not have the more noble purpose, and that’s the whole point. Same­-sex couples say, of course, we understand the nobility and the sacredness of the marriage. We know we can’t procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled.

MR. BURSCH: And Justice ­­–

JUSTICE KENNEDY: And ­­– and ­­– but you argued in your brief, and Justice Kagan was quite correct to ­­ to say that you’re saying that this harms conventional marriage. That was the argument you made in your brief as I understood it.

MR. BURSCH: Justice Kennedy, to be perfectly clear, the State of Michigan values the dignity and worth of every human being, no matter their orientation or how they choose to live their life. That’s not what this case is about. Our point is that when you change something as fundamental as the marriage definition, as Chief Justice Roberts was saying, the dictionary definition which has existed for millennia, and you apply that over generations, that those changes matter. [¶]

JUSTICE KENNEDY: [H]ow do we get from what I just said ­­… ­­ to some kind of rational or ­­ or important distinction?

MR. BURSCH: What ­­ we’re concerned about all the children, children of opposite­-sex couples and children of same­-sex couples. There are 73 million children in this country. If this Court ensconces in the Constitution a new definition of marriage and it reduces the rate that opposite­-sex couples stay together, bound to their children, because of that different understanding, even a 1 percent change … is many, many children. 49:2-24; 50:11-51:2 (crosstalk elided).

The first time I read through this, I was incredulous. “Did he really just make a ‘Won’t somebody please think of the children’ argument”?

Upon reflection, though, I changed my mind. This may actually a pretty good piece of turf for him to fight on, at least on defense — health, welfare, and safety are generally considered compelling governmental interests, especially so when children are considered. So even if he loses the battle for saying marriage is a fundamental right and therefore restrictions on it must survive strict scrutiny, he’s still got room to say that the SSM ban is narrowly-tailored, under the Argument from Prudence.

Later on, Justice Kagan asked Mr. Bursch a question after he proffered the argument that the State’s interest is not fostering emotional bonds between adults but rather encouraging bonds to form between parents and children:

JUSTICE KAGAN: Mr. Bursch, suppose ­­suppose this: Suppose that there’s a State with a very procreation­-centered view of marriage of the kind that you’re talking about. And it ­­– you know, so emotional commitment and support, all of these, the State thinks are not the purpose of marriage and they want their marriage licenses to be addressed only to the things which serve this procreation purpose. And so they say, “Well, we’re not giving marriage licenses to any ­­– to anybody who doesn’t want children.” So when people come in and ask for a marriage license, they just ask a simple question: “Do you want children?” And if the answer is no, the State says, “No marriage license for you.” Would that be constitutional? 53:10-23.

Mr. Bursch’s response didn’t satisfy Justice Kagan, and there was quickly enough crosstalk that the Chief Justice had to step in and award the floor to one of this colleagues. Justice Kennedy used this privilege to demand a direct answer to Justice Kagan’s question. That answer turned out to be, “I think it would be an unconstitutional invasion of privacy to ask the question.” 54:22-24.

I’m generally thinking that was a misstep, as it reveals that the Argument from Procreation is not really founded on anything. If marriage is about procreation, but actually doing something to directly relate marriage and procreation is an unconstitutional infringement on privacy rights, then marriage can’t really be about procreation.

Mr. Bursch doesn’t do very well with his next at-bat before Justice Kennedy, either, on the issue of marriage encouraging bonding between parent and child:

JUSTICE KENNEDY: And ­­– and under your view, it would be very difficult for same­-sex couples to adopt some of these children. I ­­– I think the argument cuts quite against you.

MR. BURSCH: Well, what ­­– what I’m talking ­­–

JUSTICE KENNEDY: And ­­ and it goes back to the basic point where you began where you had some premise that only opposite­-sex couples can have a bonding with the child. That’s ­­– that was very interesting, but it’s just a wrong premise.

MR. BURSCH: No. That’s not my premise. The premise is that we want to encourage children to be bonded to their biological mother and father. We don’t deny at all ­­ disagree at all that same­ sex couples can be bonded to their children. We hope that’s the case. 65:10-25

When the critical swing vote on your panel of judges tells you that your own argument is self-defeating and factually wrong, well, you’ve had better moments than that as an advocate. To be fair, Bursch’s point (at least at oral argument) was that the existence of marriage would encourage heterosexual fathers and mothers who unintentionally conceive to jointly raise and emotionally bond with their children, not that homosexual parents were incapable of forming emotional bonds. So Justice Kennedy’s statement about Mr. Bursch’s argument was incorrect — nevertheless, a bad moment indeed for Bursch because even best-interpreted, it meant his actual argument had been misunderstood by the person most important for him to persuade. He tried to pull his argument out of the fire in response to his next question (which came from Justice Kagan) by directing his attention as soon as he could back to Justice Kennedy:

MR. BURSCH: Because if you’re changing the meaning of marriage from one where it’s based on that biological bond to one where it’s based on emotional commitment, then adults could think, rightly, that this relationship is more about adults and not about the kids. Not the case with the Plaintiffs in this case. We all agree that they are bonded to their kids and have their best interest at heart. But when we’re talking about, Justice Kennedy, over decades, when laws change, when societal views on marriage change, there are consequences to that. And ­­ and what this comes down to is whether you ­­ not whether you agree or disagree with me or a reasonable voter on whether that could happen. It’s whether, in drawing these policy lines ­­ you know, every marriage definition excludes and includes some people. You know, the possible harm is when you change that definition, is that something — 66:7-24

Translated: “No, no, no, Justice Kennedy, the Argument from Dignity doesn’t apply; the plaintiffs have all sorts of dignity. Argument by Definition! Argument from Democracy!” Not the sort of defense he wanted to be playing at that point (and he immediately had to field hits from Justice Breyer).

Seemingly sensing that his best appeal to Kennedy was going to be Argument by Definition, Mr. Bursch referred back to Justice Kennedy’s invocation of it in response to a question from Justice Ginsburg, who made at least her third reference to coverture and the historical status of marriage as legally subordinating women to men in criticism of the historically-flavored Argument by Definition (see 69:25-72:5). Which prompted this lengthy exchange with Justice Kennedy worth reporting in full, because it seems to me fated to be the point that will sway Justice Kennedy’s vote one way or the other — Mr. Bursch’s response to the Argument from Dignity, the argument that underlies the totality of Justice Kennedy’s prior jurisprudence in favor of the rights of LGBTQ Americans:

JUSTICE KENNEDY: Just in ­­– just in fairness to you, I don’t understand this not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.

MR. BURSCH: It’s supposed to ­­–

JUSTICE KENNEDY: It’s dignity bestowing, and these parties say they want to have that ­­– that same ennoblement.

MR. BURSCH: Sure.

JUSTICE KENNEDY: Or am I missing your point?

MR. BURSCH: I think you’re missing my point. If we go back to that world where marriage doesn’t exist and the State is trying to figure out how do we link together these kids with their biological moms and dads when possible, the ­­ the glue are benefits and burdens, but not necessarily dignity. You know, dignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone, and certainly it’s not the State’s intent to take dignity away from same­-sex couples or ­­– or from anyone based on their sexual orientation.

JUSTICE KENNEDY: Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties. I’m puzzled by that. But you have another point to make.

MR. BURSCH: Well, the ­­– the main point there is ­­– is the States don’t intend to bestow dignity, but if you turn it into a dignity bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm. You know, so you can’t draw the line there. And ­­– and when you’re talking about balancing harms and the importance of letting people decide the most fundamental of questions, how do we define marriage in our society, it has other, you know, important things to think about as well. You know, one of those is that when people have to act through the democratic process, it forces neighbors to sit down and civilly discuss an issue and try to persuade each other through reason, love and logic. And we have already seen that happen in eleven States, and if you read some accounts, that could happen in many more very quickly. When you enact social change of this magnitude through the Federal courts, it’s cutting off that dialogue and it’s saying one group gets their definition and the other is maligned as being irrational or filled with animus. And that’s not the way that our democratic process is supposed to work and there are long­-term harms to our country and to that fundamental liberty interest to govern ourselves. All the things that this Court talked about in ­­– in the Schuette decision, if you take away that dynamic, if it’s a court­-imposed definition as opposed to one enacted by the people through the democratic process. 72:6-74:14.

Bursch really redeems himself at the end of this. I get the impression he had Schuette in his back pocket, waiting. Bam! The opportunity presents itself, after a whole lot of troublesome (for him) questions and concerns about the Argument from Dignity. By invoking Schuette, Bursch gets to demand dignity for democracy!  Recall that Schuette was a very recent case about affirmative action, at the University of Michigan, and the plurality opinion was written by Kennedy. Kennedy’s opinion was very deferential to the state’s democratic process; the legislation enacted by citizen referendum prohibiting the University of Michigan from considering race in admissions standards was upheld as not violating the Equal Protections Clause. And it was indeed full of all sorts of wonderful language about citizens debating the issue and finding consensus amongst themselves.

By picking the Argument from Democracy grounded in a recent case decided by Justice Kennedy himself, Bursch ended his time on what is probably the strongest possible note for his side of the case. Finishing strong is a very important part of good oral advocacy, and Mr. Bursch did that. Disagree with his point though I might, it’s hard not to admire the skill and power of that last argument.

Ms. Bonauto reserved three minutes for her rebuttal and no one asked her any questions during it.

 

VII

The ancient Romans had two concepts defining the prestige of a statesman: dignitas and auctoritas. Dignitas referred to the respect that a public man commanded from the people. It was his charisma, his charm, the esteem in which he was held by others, his ability to demonstrate that he was morally good and in his appropriate place in society. It was signaled by the applause of a crowd and the salutes of peers. Auctoritas referred to the social prestige afforded a man by virtue of the extent of his official powers: his ability to vote, his membership in a governing body such as the Senate, his holding of an official office and discharge of the duties of that office. It was symbolized by the man’s entourage of official bodyguards, carrying ceremonial axes as symbols of the powers vested in him.

Is the dignitas of an individual seeking to live out a private decision with a loved one more or less important than the auctoritas of a legislator, or perhaps even a voter, to democratically govern as he sees fit? The whole point of having a Constitution is to put certain things out of bounds from the results of democracy. I know that Justice Kennedy is aware of this; I’ve heard him remark as much in speeches I’ve attended. So I’m guardedly hopeful for the prospects of same-sex marriage.

Guardedly. As in, about 60% confidence.

Beginning, as I did, expressing admiration for Jeffrey Rosen’s identification of dignity-as-liberty as an emerging legal concept, and noting that Anthony Kennedy has been a leading propulsive force for that legal movement, it seems most probable that this concept is the one that will remain dominant in Justice Kennedy’s mind.

So if I’m right, and Kennedy votes with the traditionally liberal bloc in favor of a Federal Constitutional right to same-sex marriage, then the second question before the Court will be moot. If every state must issue marriage licenses to same-sex couples then the next question, of whether a state that does not issue its own same-sex licenses must recognize the marriages of a state that does, won’t exist.

But I might be wrong. Kennedy has seemed to grow more prudent and more deferential to state governments as his career has advanced. Kennedy’s questions, particularly to Ms. Bonauto, suggest a degree of rigidity in his thinking about what marriage is, what it means, such that he might not be able to make himself overcome his Catholic roots and the position of his faith and upbringing and fundamental social conservatism. He might look back on the Lawrence and Windsor cases and say, “This far and no farther.”

I don’t think so, and it’s not where I’d put my money. Kennedy asked harder questions, with greater vigor, of Mr. Bursch, who seemed to struggle with Kennedy’s questions a little bit more than did Ms. Bonauto or General Verrilli. The reinforcement of the Government’s pro-SSM position from General Verrilli seemed to somewhat mentally soothe him, too. If the Government is in favor of this idea, then there is clearly some official and democratic sanction for it. If he votes in favor of SSM in these cases, he will cement his legacy as a champion of advancing individual rights while still preserving his record as a generally conservative voice on the Court, and that seems to be very clearly the legacy he wishes to carve out for himself.

And, damnit, my gut tells me that he already knows it’s just plain the right thing to do. All his past votes and opinions on gay rights issues tell me that. He’s looking for a reason to do it. Let’s hope that somewhere in these arguments, he finds that reason.

Now, I must return to my regularly-scheduled professional life. Hopefully, a colleague here can brief up the second question soon and our community will have a complete picture of the issues at bar in what may turn out to be the most-watched Supreme Court case of at least a decade, a case obviously destined, whether for good or for ill, to become one of the Great Cases.

 

[1] This was laconically described by the court reporter with the single-word entry “(Interruption.)” at 27:20 in the transcript. If you’re interested in the audio, again our friends at SCOTUSblog have done nice thing for us all: Tejinder Singh has snipped out about thirty-six minutes of questions and answers, including the protestor’s outburst.

[2] Non-hyperlinked citations are to the transcript from the Question One arguments to the Court, adhering to the convention of “page number, colon, line number” to identify the start and finish points of the quote. Hyperlink additions within block quotes are my own. Question One was whether the Constitution requires states to issue same-sex marriage licenses. Question Two was whether the Constitution requires all States to recognize same-sex marriage licenses issued by other States.

[3] It’s not clear exactly which question General Verrilli is referring to. At 36:4-8, Chief Justice Roberts points out that Ms. Bonauto conceded that the First Amendment rights of a member of the clergy to not officiate a same-sex wedding would trump the rights of a couple to have a wedding in the first place, and then there is some colloquy between Roberts and Verrilli about the Argument from Legal Uniformity, followed by Roberts asking at 37:4-6, “What about Federal — it’s a Federal question if we make it a matter of constitutional law,” again asking why the Government is hesitant to adopt the Argument from Legal Uniformity.

 

All visual media sourced from Wikimedia Commons; hands-with-rainbow rings, portrait of Ms. Bonauto, and portrait of Mr. Bursch sourced from creative commons licensed photography; cover page photograph from public domain, balance from official U.S. government photographs.

Burt Likko is the pseudonym of an attorney in Southern California and the managing editor of Ordinary Times. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.