On April 28, the United States Supreme Court heard oral arguments in the cases consolidated under the name Obergefell v. Hodges, which include two from the state of Kentucky (Bourke v. Beshear and Love v. Beshear).
Those arguments were the culmination of a two-year effort to overturn Kentucky's statutory and constitutional prohibition and denial of recognition of same-sex marriages. That effort included two incredible opinions from federal district judge John Heyburn* which struck down Kentucky's discriminatory laws, as well as a reversal by the United States Court of Appeals for the Sixth Circuit.
I am a member of the five-attorney team who initiated the suit and carried it from the Western District of Kentucky to the highest court in the land. It has been quite a journey to this point. I have attempted to document at least some of it here (click on "Bourke v. Beshear" and "Love v. Beshear" in the menu to the right), and would like to share some snippets from the end run leading up to the arguments themselves.
Choosing the Oralists
Obergefell v. Hodges includes six cases from four states. The case was divided into two questions. The first asks whether the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples. The second asks whether that Amendment requires states to recognize same-sex marriages valid in other states or jurisdictions. The Supreme Court asked the large teams of attorneys from each case and state to select no more than one attorney to argue each question.
After a long and strenuous series of negotiations and moot arguments, all the teams agreed that Mary Bonauto would argue Question 1 and Douglas Hallward-Driemeier would argue Question 2 on behalf of the same-sex couples. Both Mary and Doug were experienced, excellent choices and all the couples' attorneys were confident the couples would be well-represented before the Supreme Court.
Filing the Briefs
As the selection process for the oralists was ongoing, the various teams from each state were busy completing their written briefs. The process for Kentucky involved not just the five original local attorneys, but also exceptionally talented attorneys from the ACLU as well as gifted students from the Stanford Law School Supreme Court Litigation Clinic led by Professor Jeffrey Fisher (an experienced and well-respected Supreme Court advocate in his own right). This collaborative effort, which involved innumerable drafts and revisions, produced excellent opening and reply briefs.
Meanwhile, amicus briefs from outside groups and individuals were filed on behalf of both the same-sex couples. They seemed to pour in by the truckload, our mail consistently stacked high with thick packets of briefs from all over the country. The eventual pile of filings can be seen below on the desk of my colleague Dan Canon, our Counsel of Record:
Final Argument Preparations
In the week prior to the oral arguments, attorneys from all four states began to converge on Washington, D.C. On Wednesday, April 22, moot arguments for both questions were hosted by Howard University School of Law (alma mater of legendary NAACP lawyer and eventual Supreme Court Justice Thurgood Marshall). Both Mary and Doug faced tough questions from panels of notable attorneys and professors well-versed in both the style of Supreme Court arguments and in the issues likely to be raised by the Justices in their questioning. The questions dealt not just with precedent but also the philosophical enigmas of how state sovereignty, federalism, autonomy, dignity, equality, and liberty should interact with each other.
On Friday, April 24, another moot was held, this time at the Georgetown University Law Center, one of the most prestigious law schools in the country. Again, both Mary and Doug faced panels of constitutional law experts designed to be as tough and unforgiving as possible in order to fully prepare them for the strenuous nature of oral appellate advocacy. Though there were still several days to go, it was clear that our oralists would do well under the pressure.
Having now practiced multiple times and received copious amounts of enlightened feedback from the panelists and their fellow team members, Mary and Doug sequestered themselves for final practice and tweaking. The next few days would be no time to rest for them.
For the rest of the attorneys, work became logistical. We had to make sure all of our clients would have the opportunity to sit inside the courtroom for the oral arguments. Seating is very limited inside the Supreme Court, and because the institution is deeply conservative, there is no live (or even recorded) video footage of oral arguments. If you want to witness the proceedings live, you have to be inside the room.
The Supreme Court is not used to hearing cases which involve dozens of clients and attorneys across multiple states. Obergefell v. Hodges created quite a problem for the marshals, who are responsible for seating attorneys, tour groups, and the public. Initially, they made little effort to accommodate the many families who had put their names and lives on the line to win marriage equality, let alone their many legal advocates. Eventually, though, a compromise was reached. A group of plaintiffs could sit in the court to hear Question 1, then would switch out with a second group of plaintiffs who would sit for Question 2.
Trickier was the question of the attorneys. Kentucky alone listed fourteen lawyers on the signature page of its briefs. Ohio and Tennessee also benefited from large teams of attorneys contributing to the effort. The Supreme Court, unfortunately, had no interest in accommodating all of us. A very small number of passes were distributed among the teams. Attorneys left out (including me) could either wait in the line for Supreme Court attorneys or in the line for the general public if they weren't members of the court's bar.
Members of the general public began lining up on the sidewalk in front of the court building on Friday, April 24. Yes, four full days before oral arguments. The line for attorneys began the next day. The prevailing practice is that attorneys hire line-holders for prominent cases so that they don't sully themselves camping out on the pavement with the huddled masses. For a case as big as Obergefell, members of the various teams representing same-sex couples were forced to pay hundreds or even thousands of dollars to ensure they would have a spot in the courtroom despite working years on the cases.
Deciding to avoid the trouble of shelling out that kind of money, I instead elected to coordinate the seating of the clients in the courtroom. I would help each group transition in and out for each question and otherwise make sure everyone got where they needed to be. So I would spend the arguments mostly in the Court's cafeteria and first floor hallways.
The weather was sunny and warm on April 28, the day of the arguments. As the many attorneys and plaintiffs arrived at the court building, a huge crowd had already gathered outside. Most people were there to offer support and rally for equality. A smaller portion was there to denounce our clients as sinners and evildoers bent on destroying the fabric of American morality and family life. And of course a huge contingency of press had set up cameras and interview stations. In all, it seemed like thousands of people.
Inside, the court building buzzed with activity. Long lines for attorneys and the public queued in and up the stairs to the courtroom. The first group of clients nervously waited their turn to be escorted by police through multiple layers of security. After lots of patience, they were finally allowed to take their seats. Meanwhile, the second group and I waited downstairs.
Before long, a booming voice rang out from above. A protester had stood up in the courtroom and decried the "abomination" of gay marriage and cursed everyone to hell. It took a long time for security to get him out of the building. The whole time, his barely-intelligible curses echoed from the marble walls, creating a surreal sound of distress and anger.
Shortly the chaos subsided and it was back to business. The first group of clients met me in the cafeteria and the second group headed upstairs to take their place. We were now in the home stretch. Once Question 2 had been argued, the proceedings would be over and we could all exit together for photos and interviews.
Only through some desperate negotiation with the court's chief of police was I able to make that happen, unfortunately. He was very resistant to letting the Question 1 group of plaintiffs rejoin the others upstairs to exit the main door of the building together. Luckily, he relented and out we went as a group.
Immediately upon exiting, we were met by a booming ovation from the crowd below. I had never experienced anything like it before. The photo below can't possibly capture the overwhelming feeling we all got seeing that huge crowd of supporters so elated to see us:
We spent the next couple of hours fielding questions from the press and celebrating the completion of the last big step before the court finally decides the question of gay marriage for the entire country.
The Waiting Game
The only thing left for the plaintiffs and attorneys to do is wait. In the parlance of the Chief Justice, once arguments are completed, the "case is submitted" for the court to make a decision and write the opinion. We expect that will be released on or near the end of the current term, sometime in late June.
You can read the transcripts and listen to the audio of the arguments here.
As I told Insider Louisville, I remain optimistic that we will win and same-sex couples in every state of this great country will finally receive treatment and dignity equal to that which different-sex couples take for granted.
*Sadly, Judge Heyburn passed away on April 29 after a long and courageous battle with cancer.