Lawyers Facing Off On Homosexual Marriage Poised to Make History

The Supreme Court is seen in Washington. (Photo: Susan Walsh, Associated Press)
The Supreme Court is seen in Washington.
(Photo: Susan Walsh, Associated Press)

One is a legend on the civil rights circuit, a veteran of battles for gay and lesbian rights and a MacArthur Foundation genius grant winner — who has never argued in the U.S. Supreme Court before but, nonetheless, may have recent history on her side.

The other is a baby-faced, bow-tied former west Michigan lawyer and former state solicitor general, easygoing and talkative, who has stood before the Supreme Court eight times already and has some key victories to his credit.

On Tuesday, when Mary Bonauto and John Bursch go before the court to argue the constitutionality of Michigan’s 2004 same-sex marriage ban, they may make history: A decision by the court — expected by summer — could extend the right to marry to same-sex couples over the objections of several states, or deal a harsh blow to a gay rights movement that has been on a winning streak.

Michigan will be at the center of the case, though its national implications are well-known: In the balance is a patchwork of laws and legal decisions that currently allow same-sex couples to marry in 37 states and Washington, D.C., but prohibit it elsewhere, denying gay and lesbian couples and their children the legal benefits and protections marriage provides, but maintaining what has been the long-held, traditional view of marriage as being only between a man and a woman.

It’s not the first time Michigan has been wrapped up in a key constitutional question before the court, however. Just last year, Bursch, who was then still the state’s solicitor general, won a case recognizing the right of state voters to bar the use of race as a factor in university admissions. That decision recognizing the right of state voters to decide sensitive political policy — by Justice Anthony Kennedy, a swing vote on the court — is expected to be cited widely.

Whatever the court decides will always be known as Obergefell v. Hodges, an Ohio case with the lowest assignment number among the consolidated cases from those being heard. But with Bonauto and Bursch handling the arguments over whether theU.S. Constitution requires states to license same-sex marriages, in a real sense it’s the debate over Michigan’s ban that could determine whether such bans — and legal protection for that traditional view of marriage — survive.

And if the case is one of the most significant to come to the court, neither of the lawyers sounds much like he or she is feeling the burden of history.But Obergefell is different, potentially recognizing a cultural shift that has been building toward a climax. A steady stream of court decisions in their favor indicates how far the gay rights movement has come. And when the State of Indiana recently approved legislation critics said could allow businesses to discriminate against gays and lesbians, pressure to change it was swift and successful.

Over the decades, Michigan cases have set precedents on an accused’s right to counsel, government surveillance, desegregation and more. In 2010, when the Citizens United decision loosened the ability of corporations and labor unions to support political candidates, it overturned a 1990 ruling in a Michigan case that had limited such practices.

In a conference call with reporters last week, Bonauto, a lawyer with the Boston-based Gay & Lesbian Advocates & Defenders who is representing April DeBoer and Jayne Rowse of Hazel Park in their challenge of Michigan’s ban, said she was excited but was wary about discussing too many particulars regarding the case, which consolidated challenges from four states.

As for Bursch, a 42-year-old father of five, he couldn’t seem more relaxed. Does he get butterflies? Sure, but that’s natural, he said. Does the significance of the case weigh on him? Not really, he said, though he appreciates the wide impact the court’s decision could have on people on both sides of the same-sex marriage debate.

“It’s not one of those things where you think the weight of the world is on your shoulders, because all I can do is be the best advocate I can,” Bursch said.

Last week, Bonauto said she felt as if she’d been prepping for this fight for years. While the contours of her argument are well-known — that equal protection and due process guarantee a fundamental right to marry, regardless of sexual orientation — she declined to discuss in detail many aspects of the case or which justices, such as Kennedy, she hopes to sway.

“What we’re doing is making the best arguments we can on the law before nine justices and hoping that at the end of the day we have a majority,” she said, downplaying what many court observers believe is a ripe opportunity for the justices to find in her favor.

Any reluctance to talk strategy didn’t surprise Carter Phillips of Sidley Austin LLP in Washington, who has argued 80 cases before the court — more than any other lawyer in private practice.

“Most lawyers are quite tentative before the argument. They don’t want to create some kind of headline that might cause a stir,” he said.

As to the significance of a case, Phillips said it doesn’t make much of a difference: When the justices start lobbing questions — often less than a minute after a lawyer begins to present his or her case — a lawyer starts fielding them the best he or she can. Either you are prepared at that point or not.

“If anyone tells you it does not get easier with experience, they are lying,” Phillips said. “I certainly get a large rush of adrenaline still, but not the kind of deep fear I remember experiencing 30 years ago.”

Asked this week about her experience versus Bursch’s before the court, Bonauto said simply: “I look forward to meeting him.”

A question a minute

Most arguments before the Supreme Court last an hour, with each side getting 30 minutes. But the same-sex marriage hearing will be longer: a full 2 1/2 hours.

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SOURCE: Detroit Free Press – Todd Spangler

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