MICHIGAN ATTORNEY John Bursch, an experienced Supreme Court litigator, walked quickly to the lectern and faced the nine justices.
“This case isn’t about how to define marriage,” said Bursch, the former solicitor general of Michigan. “It’s about who gets to decide that question. Is it the people acting through the democratic process or is it the federal courts? And we’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage. . . .”
“I’m sorry,” interjected Justice Sotomayor, the first justice of Hispanic heritage and the third woman to serve on the court. “Nobody is taking that away from anybody. Every single individual in this society chooses, if they can, their sexual orientation or who to marry or not marry. I suspect even with us giving gays rights to marry that there’s some gay people who will choose not to, just as there’s some heterosexual couples who choose not to marry. So we’re not taking anybody’s liberty away.”
“But we’re talking about the fundamental liberty interest in deciding the question of what marriage means, and to get that—”
“. . . I thought that I heard the answer to the question,” Justice Breyer cut in. “. . . What I heard was, one, marriage is fundamental. I mean, certainly that’s true for ten thousand years. And marriage, as the states administer it, is open to vast numbers of people who both have children, adopt children, don’t have children, all over the place. But there is one group of people whom they won’t open marriage to so they have no possibility to participate in that fundamental liberty. That is people of the same sex who wish to marry.”
He went on, “And so we ask, ‘Why?’ And the answer we get is, ‘Well, people have always done it.’ You know, you could have answered that one the same way we talk about racial segregation. Or two, because certain religious groups do think it’s a sin, and I believe they sincerely think it. There’s no question about their sincerity, but is a purely religious reason on some part of some people sufficient? And then when I look for reasons three, four, and five, I don’t find them. . . .”
“Justice Breyer,” Bursch replied, “those answers one and two are not our answers.”
“Good.”
“Our answer number one is that the marriage institution did not develop to deny dignity or to give second-class status to anyone. It developed to serve purposes that, by their nature, arrive from biology. Now imagine a world today where we had no marriage at all. Men and women would still be getting together and creating children, but they wouldn’t be attached to each other in any social institution. . . .”
“Mr. Bursch, I understand that argument,” Justice Kagan, the fourth woman to serve on the court, said. “It’s the principal argument that you make in your briefs, that same-sex marriage doesn’t advance this state interest in regulating procreation. Let’s just assume for the moment that’s so. Obviously, same-sex partners cannot procreate themselves. But . . . are you saying that recognizing same-sex marriage will impinge upon that state interest, will harm that state interest in regulating procreation through marriage?”
“We are saying that, Your Honor . . . ”
“How could that be?” Justice Ginsburg, the second woman on the court, asked, “because all of the incentives, all of the benefits that marriage affords would still be available. So you’re not taking away anything from heterosexual couples. They would have the very same incentive to marry, all the benefits that come with marriage that they do now.”
“Justice Kagan and Justice Ginsburg,” Bursch said, “it has to do with the societal understanding of what marriage means. This is a much bigger idea than any particular couple and what a marriage might mean to them or to their children. And when you change the definition of marriage to delink the idea that we’re binding children with their biological mom and dad, that has consequences.”
Al thought about Joe Vitale and Rob Talmas, Pam and Nicole Yorksmith, and all the plaintiffs’ children who were waiting in the Supreme Court’s cafeteria for their parents.
“That’s the problem,” Justice Sotomayor said.
“If I could—”
“Marriage doesn’t do that on any level. [In] how many married couples do fathers . . . walk away from their children?”
“Justice—”
“So it’s not that the institution alone does it and that without it, that father is going to stay in the marriage. He made a choice.”
“Justice—”
“. . . How does withholding marriage from one group, same-sex couples, increase the value to the other group?”
“Justice Sotomayor, there’s all kinds of societal pressures that are already delinking that reason that the state advances for marriage, keeping kids and their biological moms and dads together whenever possible.”
“I think,” Justice Kagan said moments later, “before something as fundamental to a society and to individuals as marriage, before an exclusion of this kind can be made in that institution, the state needs some reason for that exclusion.”
“. . . Well, first, it wasn’t a reason for an exclusion,” Bursch replied. “It was a definition to solve a particular problem. But the reason why there’s harm if you change the definition because, in people’s minds, if marriage and creating children don’t have anything to do with each other, then what do you expect? You expect more children out of marriage.”
“But do you think that that’s what it would do, Mr. Bursch, that if one allowed same-sex marriage, one would be announcing to the world that marriage and children have nothing to do with each other?” Justice Kagan asked.
“Not in the abstract, Your Honor. That kind of example—”
“Well, not in the abstract, not in the concrete.”
Justice Kennedy cut in seconds later. “You argued in your brief, and Justice Kagan was quite correct to say, that you’re saying that this harms conventional marriage. . . .”
“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,” Bursch said. “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.”
“. . . You know,” Justice Sotomayor said moments later, “the problem is that I don’t actually accept your starting premise. The right to marriage is, I think, embedded in our constitutional law. It is a fundamental right. We’ve said it in a number of cases. The issue is you can’t narrow it down to say, ‘But is gay marriage fundamental?’”
Justice Kagan added, “See, to me it seems as though you are doing something very different that we’ve never done before which is you are defining constitutional rights in terms of the kinds of people that can exercise them.”
Since the courtroom was packed, Greg Bourke, Michael De Leon, Isaiah, and Bella only had tickets inside for question two, and so they waited in the heat at the front of the building, clutching a small Kentucky state flag. “We should be viewed as an actual family and not hated,” Isaiah told a reporter as he glanced at his fathers, “for what they are.”
Protesters were squeezed on the sidewalks, on the grass, in the streets, but there was jubilation, too, as couples kissed and chanted and the Gay Men’s Chorus sang under a tree. The entire fifth-grade class from Georgetown Day School watched in bright-yellow T-shirts with rainbow stickers, and nearby, a priest told a small group, “It’s important to see that Christians have a heart.”
Finally, Bourke and De Leon were called inside, and they quickly kissed Bella and Isaiah, who went to wait in the cafeteria. “I feel like I am literally shaking on the inside,” Bourke told another father from Kentucky as they stood in a stuffy holding area just outside the courtroom. Inside, sitting next to Pam and Nicole Yorksmith, Bourke took long, slow breaths and reached for his husband’s hand.
At the front of the courtroom, Doug Hallward-Driemeier sat at the counsel’s table with Al, attorney Dawn Elliott from Kentucky, and Abby Rubenfeld, who had led the marriage recognition case in Tennessee. U.S. Solicitor General Donald B Verrilli Jr., who had come to support the plaintiffs on behalf of the president, sat nearby.
At 11:39 A.M., Hallward-Driemeier stood up to address the court.
Al tensed. It was finally time. He had always wanted an outright win for marriage equality, but he needed a win for his clients no matter the outcome of question one. This second question and the plaintiffs who were posing it, Al believed, would move the court to at least allow marriages to travel across state lines. But he also hoped his case had exposed the tremendous hardships faced by gay couples in birth and in death and that, in the end, their stories would convince the court that same-sex marriage in all fifty states couldn’t wait on the democratic process.
“Mr. Chief Justice, and may it please the court,” Hallward-Driemeier started. “The question two petitioners are already married. They have established those enduring relationships and they have a liberty interest that is of fundamental importance to these couples and their children. A state should not be allowed to effectively dissolve that marriage without a sufficiently important justification to do so. . . . ”
“. . . Let’s say someone gets married in a country that permits polygamy. Does a state have to acknowledge that marriage?” Justice Scalia asked moments later.
“Well, of course, the state could assert justifications for not doing so, and I think there would be justifications.”
“What would the justification be? That it’s contrary to the state’s public policy, I presume. Right?”
“Well, no, Your Honor. I think that the justification would be that the state doesn’t have such an institution. A polygamous relationship would raise all kinds of questions that the state’s marriage laws don’t address.”
“What if it’s not a plural relationship?” Justice Alito asked. “What if one state says that individuals can marry at the age of puberty. So a twelve-year-old female can marry. Would another state be obligated to recognize that marriage?”
“I think probably not,” Hallward-Driemeier said. “But the state would have, in that instance, a sufficiently important interest in protecting the true consent of the married person. . . . ”
“I think your argument is pretty much the exact opposite of the argument of the petitioners in the prior case,” Chief Justice Roberts said about halfway through the hearing. “The argument that was presented against them is: you can’t do this, we’ve never done this before, recognized same-sex marriage. And now you’re saying, ‘Well, they can’t not recognize same-sex marriages because they’ve never not recognized marriages before that were lawfully performed in other states.”
“Well, what—”
“You’ve got to decide one or the other if you win.”
Hallward-Driemeier paused. He had prepared for this, and there was no hesitation when he said, “No, I don’t think so at all, Your Honor. And I think that what’s essential and common between us is that we recognize that the marriage that our petitioners have entered into is a marriage. It is that same institution, that same most important relationship of one’s life that this court has held out as fundamental. . . .”
“It’s our clients who take marriage seriously,” he went on moments later. “They took vows to each other and bought into an institution that, indeed, as this court has said, predates the Bill of Rights, that is the most important and fundamental in their lives, and the state should offer something more than mere pretext as ground to destroy it.”
Al had been hoping that Hallward-Driemeier would personalize the arguments somehow, describe the plaintiffs who had put their lives on hold and stepped out publicly to defend their marriages and protect their children. Al shifted forward in his seat when that happened at the close of the hearing.
Hallward-Driemeier mentioned Val Tanco, Sophy Jesty, and their daughter, Emi, who was waiting outside with Jesty’s twin sister. “. . . Tennessee would treat Dr. Jesty not as a mom, but as a legal stranger with no right to visit her child, no right to make medical decisions for her. These laws have real import for real people.”
Hallward-Driemeier turned to the plaintiffs of Ohio. “Even Jim Obergefell’s husband’s death certificate will not reflect the fact that he was married or the name of his husband. The state has no legitimate interest for denying them the dignity of that last fact regarding his life.”
Tanco, Jesty, and Jim cried softly. Their stories had been told out loud in the official record of the historic hearing.
Hallward-Driemeier straightened his shoulders and pleaded with the court, “I urge the court not to enshrine in our Constitution a second-class status of these petitioners’ marriages.”
Hallward-Driemeier had appeared before the Supreme Court many times and had never shed a tear, but when he walked to the counsel’s table, his eyes were moist.
The plaintiffs and lawyers spilled out of the courtroom when it was over, down the Great Hall, through the heavy bronze doors, out onto the steep flight of stairs to the plaza below, Bourke and De Leon, Talmas and Vitale, Pam and Nicole Yorksmith. Sophy Jesty, arm in arm with her wife and attorney Regina Lambert, could feel the roar from the crowd roll up the steps. Jim’s face was red from crying, and he stopped, high above Washington, and put his hand over his heart. The cheers grew louder. Do you hear that, John?
Dozens of journalists were waiting in a thick tangle of cameras set up in a semicircle near the fountain on his left, but still Jim stood, gazing across the Capitol. Al gripped Jim’s shoulders, rubbed his back. “I’m proud of you,” Al whispered, and together they descended the steps.
Bourke moved to the cameras, his voice barely audible over the cheers. “They saw our families. They saw our love.”
Jim said, “I trust in the Supreme Court. . . . We all deserve the same civil rights, the same fundamental rights.”
Jim ducked into a car with Al and headed to a luncheon at the ACLU’s offices downtown. Already Jim had twenty-eight new texts, thirty unread e-mails, forty-three Facebook friend requests, and 140 Facebook messages. But his friends and family were waiting at the lunch, some wearing pink TEAM HALF FULL T-shirts in John’s honor. James Esseks, Al’s cocounsel and the head of the ACLU’s LGBT project, raised a glass of champagne. “We needed people to step forward . . . to share their stories, their families, their heartbreak.”
Esseks choked up. “Cheers!”
In good times, Al’s father had always shouted, “Hip, hip, hooray!” Standing next to Esseks, Al cried, “Hip, hip . . .”
“Hooray!” the room erupted.
Jim turned around, to Paulette, to Eric Avner and Adrienne Cowden, to his niece, to his brother, to other friends and family members. They held up their glasses and said, in unison, “To John.”