The Lawyer Defending Discrimination In The Supreme Court May Have Just Talked Himself Out Of Victory


WASHINGTON, D.C. — Before oral arguments began in Obergefell v. Hodges, the consolidated cases challenging marriage discrimination under the Constitution, a Supreme Court decision in favor of marriage equality seemed like a near certainty. After Solicitor General Donald Verrilli, the second of two lawyers to argue in favor of equality, took his seat, the outcome of the cases seemed much less sure.

The Court’s conservatives fixated upon their belief that same-sex marriages are a very new institution. “Every definition [of marriage] I looked up prior to about a dozen years ago,” Chief Justice John Roberts claimed, limited marriages to opposite-sex couples. Advocates for equality, Roberts continued, are “seeking to change what the institution is.”

Meanwhile, Justice Samuel Alito argued that even “ancient Greece,” a society he perceived as welcoming to same-sex relationships, did not permit same-sex marriage. Justice Antonin Scalia insisted that “for millennia, not a single society” supported marriage equality.

Most ominously of all for supporters of equal marriage rights, Justice Anthony Kennedy — the key fifth vote who authored all three of the Court’s most important gay rights decisions — seemed to share Scalia’s concerns. Though he noted that about as much time has passed between the landmark 2003 gay rights case Lawrence v. Texas and today as has passed between Brown v. Board of Education and the Court’s decision striking down racial marriage discrimination, Kennedy fretted that “we’re talking about millennia” that human civilization existed without recognizing same-sex marriages.


Not long after John Bursch, the lawyer defending discrimination, took the podium, however, Kennedy began to sound much more like the justice who supported gay rights in cases like Lawrence.

Curiously, Bursch largely ignored the arguments rooted in history and tradition that animated so many of the conservative justices’ earlier questions, and instead focused on an argument that had little success that last time it was presented to the Court. “When you change the definition of marriage,” Bursch declared, that has “consequences.”

When pressed to explain the consequences, Bursch asked the Court to consider two different couples, one of which believes that marriage exists for the benefit of children, and the other which believes that it exists to foster relationships between adults. If the Court adopts the view of the second couple — a position he claimed the justices would implicitly embrace if they allowed same-sex couples, who cannot procreate, to marry — that will send the message that marriage has little to do with children, which will in turn lead to more children being born out-of-wedlock. The “reasonable voter,” Bursch insisted, could conclude that it was necessary to ban same-sex couples from marrying in order to halt this attenuated chain of events that allegedly ends in more children being born to unmarried couples.

Several justices appeared to disagee with Bursch’s understanding of how a “reasonable voter” would act, but Bursch was not making a novel argument. To the contrary, his argument closely resembled Justice Alito’s dissenting opinion in United States v. Windsor, which argued that the battle over marriage equality is really a battle between two incompatible views of marriage — a “traditional” view which sees marriage as an “exclusively opposite-sex institution and as one inextricably linked to procreation and biological kinship” and a “consent-based” view “that primarily defines marriage as the solemnization of mutual commitment — marked by strong emotional attachment and sexual attraction — between two persons.”

Only one other justice, however, Justice Clarence Thomas, joined this part of Alito’s dissent, so Bursch’s decision to rely so heavily on an argument that only swayed two justices in Windsor was an odd strategic choice.


One justice who did not join Alito’s dissent was Justice Kennedy. As Bursch started to lay out his view that child-centered marriage is different than adult-centered marriage, Kennedy balked. Same-sex couples, Kennedy insisted, want to say that “we too” should be able to enjoy the “dignity” of marriage. He also accused Bursch of presenting an argument which wrongly implied that same-sex couples cannot bond with their children.

Bursch’s response to Kennedy’s concerns was a disaster. After Bursch insisted that marriage was never intended to be “dignitary [sic] bestowing,” Kennedy quipped back “I thought that was the whole purpose of marriage!” Kennedy’s opinion in Lawrence, which outlawed a sex ban targeting a gay couple, explained that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” involve “choices central to personal dignity and autonomy,” and “are central to the liberty protected by the Fourteenth Amendment.” So when Kennedy starts accusing a lawyer of denying dignity to gay couples, that’s a major sign that lawyer is in trouble.

An open question is, assuming that there are five votes in favor of marriage equality, how the author of the opinion will construct the Court’s reasoning. Several of the liberal justices seemed prepared to hold that marriage is a fundamental constitutional right that is violated if gay couples are excluded. This would be a sub-optimal outcome for gay rights, as it could still potentially permit states to discriminate against gay men, lesbians, and bisexuals outside of the marriage context. But it was not at all clear that Kennedy was prepared to sign onto a fundamental rights opinion. To the contrary, Kennedy asked Verrilli about a past decision establishing that fundamental rights should be defined narrowly.

In the past, however, Kennedy has not shied away from writing gay rights decisions that are heavy on flowery language and light on ordinary legal reasoning, so he could easily side with marriage equality without providing a doctrinally satisfying explanation for his decision. In any event, however, the argument finished with its clearest sign that Kennedy was likely to side with equality.

After an hour of argument on whether the Constitution protects marriage equality, the Court heard another hour of argument on a limited question — if the Constitution does not require states to issue marriage licenses to gay couples, does it still require those states to recognize same-sex marriages from other states. As several justices pointed out during this argument, the premise of this second question was that supporters of equality had already lost on the first question.

Kennedy, however, was largely silent during the second argument. It was as if he already knew that his answer to the first question would render the second one moot.