As I start prep for the ride with Jessica I am also finishing my work on the marriage equality cases that will be argued in the Supreme Court on April 28. Are you cynical about judicial decision making? It is certainly flawed. Favors rich. Favors those in power. I am often frustrated but not cynical. Why not? Because judicial decision making clearly tries to balance those human factors that promote unfairness. Appeals help. Appellate courts often sit in three judge panels. That helps most of the time. Though I did lose the Obergefell appeal, 2 – 1. The Supreme Court has nine voting members. On marriage equality we expect a closely divided ruling. I am part of a team that has been preparing the Supreme Court briefs and helping the oralists hone their points as we head toward the April 28 argument.
I am inspired by our clients. Four of our client couples simply want Ohio to recognize their marriages and the fact that their children have two, not one parent. Families headed by different sex married couples take this for granted. This is important for support, custody, medical care, travel and much more. Jim Obergefell and David Michener are widows. They simply want the death certificates of their husbands to say they were married and to name Jim and David as the surviving spouses. Why should Ohio issue death records that are wrong and that deny all dignity to these couples? I am also inspired by my colleagues including many attorneys who have worked on marriage equality cases across the country for more than 20 years. The ACLU, LAMBDA, NCLR, and GLAD have fielded truly remarkable, dedicated advocates.
Who decides? The Sixth Circuit Court of Appeals deferred to the voters who decided marriage equality by passing a constitutional amendment blocking Ohio from licensing same sex couples to marry and blocking Ohio from recognizing marriages among same sex couples celebrated elsewhere. But such a ban clashes with first principles of equal protection and liberty. Courts decide such challenges. Some justices recognize no rights unless they were explicitly included when the constitutional text was drafted. Most recognize that while the text has not changed our notions about women for example have changed and therefore principles of equality have expanded to limit sex discrimination. So too we say with our notions about LGBTQ people. Time to open the door to equality even wider. Is the right to marriage fundamental? Some justices will say no. Having spent countless hours drafting briefs and in moot arguments designed to persuade them otherwise I come away knowing that our best arguments are marshaled and will soon be before them. The other side will feel the same I am sure. Not sure how else I would take such an important issue and test it against our core principles. So if we lose I will be very frustrated and truly outraged for our clients who deserve full marriage equality. But for now I am proud and humbled to be part of this historic effort.