And just how will Chief Justice John Roberts vote?
by Chuck Colbert
There were two questions before the U.S. Supreme Court on April 28 during oral arguments in the case Obergefell v. Hodges: Does the U.S. Constitution require states to “license a marriage between two people of the same sex” and must states “recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.”
Inside and outside the courtroom, gay media were on hand to cover yet another historic moment in the legal struggle for full LGBT equality.
As veteran journalist Lisa Keen, founder and chief correspondent for Keen News Service, explained in her coverage, “For two and a half hours — more than twice the time most cases get — an animated bench grilled attorneys for same-sex couples and the four states that seek to ban their marriages.” The four states are: Michigan, Ohio, Kentucky and Tennessee.
Keen News Service (KNS) provides gay content for LGBT publications nationwide. All seven of the service’s clients used KNS oral arguments coverage pieces, including San Francisco-based Bay Area Reporter, Dallas Voice, Atlanta-based GA Voice, Michigan-based Pride Source, South Florida Gay News and Chicago-based Windy City Times.
Keen also wrote a preview piece for the Boston Globe on Mary Bonauto, lead attorney for marriage equality, and a piece detailing Massachusetts Attorney General Maura Healey’s amicus brief to the court. Healey is the nation’s first openly gay state attorney general.
All said and done, Keen noted in a subsequent analysis piece, “The U.S. Supreme Court has almost certainly made its decision about the right to marry for same-sex couples. The justices met in private conference Friday, May 1, and took a vote. They have until June 30 to issue their decision. Most legal observers who watched or listened to the oral arguments from April 28 in Obergefell v. Hodges … predict Justice Anthony Kennedy will vote with the court’s liberal wing and find the bans unconstitutional. A few, like UC Irvine School of Law Professor Erwin Chemerinsky, believe the vote could even be 6-3, with Chief Justice John Roberts on board.”
In his coverage for Buzz Feed, Chris Geidner made the same observation concerning Kennedy and Roberts.
Asked about her approach in covering oral arguments and what’s at stake for LGBT people, Keen said in an email, “I looked at the potential for the decision to reach beyond the question of state bans on same-sex marriage and perhaps affect anti-gay laws in a number of contexts, including public accommodations. … Many legal observers believed there was a real potential the court could stipulate what level of scrutiny to apply to gay-specific laws. After the April 28 argument, nobody really expects that to happen anymore.
“I think for the mainstream media, the key question is simply marriage: will gays be allowed to marry? But for LGBT people, this decision has concrete legal implications beyond marriage and the significant potential of saying to LBGT opponents wherever they want to battle that society won’t tolerate this kind of blatant discriminatory treatment of our LGBT sisters and brothers.”
Her coverage differs from mainstream reporting, Keen said, insofar as “a lot of media have reported this as ‘gay marriage’ trying to enter the arena with ‘straight marriage,’ but I see the conflict as being about gay couples seeking the license, benefits and dignity of ‘marriage’ the same as straight couples. Straight media sees ‘gay marriage’ and ‘marriage.’ I see ‘marriage.’”
Keen’s analysis piece dealt with how Chief Justice Roberts might vote.
“Those who think Roberts could join a majority to strike down the laws were heartened by a question he posed to the attorney defending Michigan’s ban, John Bursch.
“‘I’m not sure it’s necessary to get into sexual orientation to resolve the case,’ said Roberts. ‘I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?’
“If the court decided state bans on same-sex marriage constitute sex discrimination, ‘then I can promise you that lawyers in almost any case where a law discriminates against gay people will make the argument that the law constitutes unconstitutional sex discrimination,’ said Roberta Kaplan, who argued on behalf of Edith Windsor in the 2013 case that struck down a key provision of the Defense of Marriage Act.
“‘On the other hand, there is always a bit of a disconnect with this argument, particularly when it’s clear that the law at issue was passed to treat people differently based on their sexual orientation, not their gender,’ she added.
“For instance, Kaplan said she would be surprised if a ruling in Obergefell will stop the passage of the growing number of laws attempting to provide a religious exemption for businesses to discriminate against LGBT people. The impact of those ‘religious freedom’ laws, she said, is going to be ‘hotly litigated, no matter what.’”
In his reporting, Washington Blade reporter Chris Johnson also noted Roberts’ raising the issue of sex discrimination. In subsequent reporting he also wrote about the possibility of the Supreme Court ruling against same-sex marriage advocates, ruling in favor of marriage equality, and the White House’s confidence in arguments favoring marriage. U.S. Solicitor General Donald Verrilli argued in favor of marriage equality.
Outside the Supreme Court, Blade reporter Michael K. Lavers covered the scene of advocates and detractors of equal marriage rights. There, lead attorney for marriage equality, Mary Bonauto of Boston-based Gay & Lesbian Advocates & Defenders, told reporters after oral arguments, “Today was a great day for equality at the U.S. Supreme Court.”
Lavers also reported on advocates awaiting the outcome of marriage in the Supreme Court.
The Advocate provided comprehensive coverage of oral arguments (Sunnivie Brydum, with Lucas Grindley and Neal Broverman contributing) and Washington, D.C.’s Metro Weekly (John Riley and Randy Shulman) had a presence at the court and provided coverage.
Arthur S. Leonard provided coverage of oral arguments for New York City’s Gay City News. Like other legal observers, Leonard believes Kennedy will go with the court’s liberal wing in favor of marriage equality.
Leonard wrote, “An adverse ruling on Question 1 –– the right to marry question –– would be a daunting proposition liable to generate frenzied litigation over the status of thousands of marriages performed in the 18 states where same-sex couples first became eligible to wed after October 6.
“Viewed from that perspective, it seems highly likely Kennedy will overcome any qualms he might have about suddenly abandoning ‘millennia’ of different-sex marriage traditions in favor of avoiding the harms suffered by same-sex couples and their children –– in terms of financial and emotional well-being and dignity –– when their families are denied the benefits of marriage.”