Deciding the Same-Sex Marriage Question Obergefell v. Hodges

Around here, she’s a hero. Mary Bonauto, civil rights project director at New England’s GLAD (Gay & Lesbian Advocates & Defenders), is the attorney who marshaled and argued the first U.S. case that opened marriage rights for same-sex couples, right here in Massachusetts. In fact, she’s the Thurgood Marshall of the marriage equality movement—working since the early 1990s to central-map the strategy on the issue. Her work began in Vermont where she helped two lawyers sue for marriage rights there, which resulted in that state’s breakthrough civil unions. Bonauto then won Goodridge here in Massachusetts, making our state the first in the nation to try the then-terrifying—and now terribly boring—recognition of marriages between two women or two men. And Bonauto is the attorney who has helped win the rest of New England—although she would be the first to say she is just one among many who have been working on the issue.

Which is why lesbians and gay men around the country were thrilled when they learned that Bonauto would represent them on the question at the Supreme Court this week in Obergefell v. Hodges, the case that may—or may not—open up marriage equality nationwide. The room held a Massachusetts who’s-who on LGBT rights: Bonauto, of course, and her twin daughters in the audience; Marc Solomon, now of the national group Freedom to Marry, and one of those responsible for ensuring that Massachusetts’ legislature did not roll back Goodridge after that decision went into effect; our new Attorney General Maura Healey, who back then ran the Commonwealth of Massachusetts’ lawsuit against DOMA as a companion to Bonauto’s challenge.

Within the first few minutes of launching her argument, Bonauto was peppered by half the Court about whether it should have the chutzpah to rule for a new way of seeing marriage after “This definition has been with us for millennia,” as presumed swing voter Justice Kennedy put it, adding, “And it’s very difficult for the Court to say, oh, well, we know better.”

Justice Alito followed up with by asking pointedly whether, during all those millennia, the only reason for excluding same-sex couples was “animus,” the Supreme Court’s shorthand for illegitimately demeaning a group of people just because they’re a disliked minority. Several of the Justices came after her on the “millennia” question: Scalia, Roberts, even Justice Breyer (usually a reliable liberal vote), who sternly asked why, when different-sex marriage “has been the law everywhere for thousands of years among people who were not discriminating even against gay people, and suddenly you want nine people outside the ballot box to require States that don’t want to do it to change what you’ve heard is change what marriage is to include gay people. Why cannot those States at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?”

Of course, marriage’s borders and definitions have actually changed dramatically over the millennia; Justice Ginsburg stepped in pointedly to say same-sex couples could not have been added to the institution 100 years ago when it was defined in a way that made the husband a master and the wife legally invisible. Now that the spouses are equal, she implied clearly, same-sex couples belong. But several Justices seemed worried about foreclosing the democratic debate, and imposing a constitutional mandate on a social question that is still moving so rapidly—pulling another Roe, in other words, and freezing the cultural debate into a permawar, as Ginsburg herself has suggested happened on abortion.

Bonauto’s answer was that “the question of who decides, it’s not about the Court versus the States. It’s about the individual making the choice to marry and with whom to marry, or the government.”

Bonauto was just the first of several attorneys arguing various points on an issue that the Supreme Court had parceled into two primary questions: first, does the constitution’s promise of equal protection under the law require a state to license a marriage between two people of one sex; and second, if not, does the constitution require a state to recognize a marriage between two people of one sex if they were lawfully married elsewhere–in, say, Massachusetts? Later in the argument, Kennedy seemed personally offended when John Bursch, Michigan’s special assistant attorney general, said that marriage laws were about ensuring that anyone who dabbled in procreative sexuality was forever after tied to the children who might result, and didn’t confer dignity and respect on the married pair—so same-sex couples out couldn’t be excluded based on animus, since they just didn’t qualify. Kennedy wasn’t happy with that, not a bit. “That assumes that same-sex couples could not have a more noble purpose, and that’s the whole point,” he said. “Same-sex couples say, of course we understand the nobility and the sacredness of 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.” So there.

Courtwatchers I spoke with off the record thought the Court had split up the issue into those two questions specifically so that it could say both no and yes: no to requiring states to perform marriages for same-sex pairs, but yes to requiring them to recognize same-sex marriages made elsewhere. Douglas Hallward-Driemeier, the attorney on the second question, offered a pointed example of why that mattered, telling the story of a pair who married and adopted children in California and was then transferred to Tennessee. But “the cost of that transfer for that job for them was the destruction of their family relationships, all that they had relied on in building their lives together.” How did that marital evaporation help their children, was the implication—appealing to Kennedy, who made it clear in the Windsor argument and opinion that he cared about the children in same-sex families.

Hallward-Driemeier offered a way forward, saying that Kennedy’s opinion in Windsor v. United States, which declared that the federal government could not refuse to recognize marriages lawfully-made or recognized in states like Massachusetts and New York, could be applied in Obergefell’s question 2 just as simply. “Vertical” federalism should be no different from “horizontal” federalism: couples have a right not just to marry but to remain married, to be able to move to Tennessee and still have their family ties—and dignity—respected. I’ll bet Kennedy will side with the liberals—as he has in every major gay rights case since 1996’s Romer v. Evans—and will require that states have to continue to recognize the “dignity” of a marriage between two people of one sex that was lawfully made in states like Massachusetts.

We all know which way public opinion is heading. That wasn’t as clear back in 1993, when Mary Bonauto and a handful of others were first thinking about how to blow their trumpets at marriage’s Jericho until the walls came tumbling down. Yesterday it was oh-so right that she stood up in front of the robed nine to blow her powerful trumpet yet again.

For transcripts and audio of both parts of the Obergefell argument, visit supremecourt.gov.

—E. J. Graff