WASHINGTON (AP) — Five lawyers will take turns at the Supreme Court lectern Tuesday for the highly anticipated and extended arguments over same-sex marriage. Among them are the Obama administration’s top lawyer at the high court, with more than two dozen arguments behind him, and two lawyers making their first appearance before the justices.
The cases come from Kentucky, Michigan, Ohio and Tennessee, all of which had their marriage bans upheld by the federal appeals court in Cincinnati.
The justices will hear 2½ hours of arguments on these two questions: whether same-sex couples have a constitutional right to marry and whether states must recognize same-sex marriages from elsewhere.
Civil rights lawyer Mary Bonauto, backed by Solicitor General Donald Verrilli Jr., will argue for the right to marry. Former Michigan Solicitor General John Bursch will defend the state laws.
On the second question, Washington lawyer Douglas Hallward-Driemeier will urge the court to rule that states must recognize same-sex marriages performed elsewhere. On the other side will be Joseph Whalen, Tennessee’s associate solicitor general.
A look at the advocates:
Bonauto has been called the Thurgood Marshall of the push for equal rights for gay and lesbian in the United States. She was the winning lawyer the first time a court granted same-sex couples the right to marry, in Massachusetts in 2003. She hopes her next argument is the last time same-sex marriage is tested in court.
The 53-year-old has been at the forefront of the legal fight for gay rights, including same-sex marriage, for more than two decades. But it will be her first argument before the nation’s highest court.
In her early days as the civil rights project director at the Boston-based Gay & Lesbian Advocates & Defenders, where she has worked for 25 years, Bonauto said she used to say no when same-sex couples asked her to take on their marriage cases in the courts. As recently as late 2012, Bonauto worried that the time was not yet right to ask the Supreme Court to settle the issue once and for all.
But that time has now arrived, she said.
“There’s no reason to tell these families they should be denied legal respect. It’s our hope that we soon will be able to secure that for people everywhere,” Bonauto said in a recent call with reporters.
Bonauto received a MacArthur Foundation fellowship last year. She lives in Portland, Maine, with her wife, professor Jennifer Wriggins of the University of Maine’s law school, and their twin teenage daughters.
Bursch made a Supreme Court name for himself as Michigan’s solicitor general, arguing eight cases at the high court in just over two years. That record included the contentious dispute over the state’s voter-approved ban on the use of race in college admissions. He defended the ban and the justices sided with him last year.
His performance during that argument was typical of his appearances before the court — unflappable in the face of sustained, and at times hostile, questioning from Justice Sonia Sotomayor.
Same-sex marriage opponents have pointed to Justice Anthony Kennedy’s opinion in that case, which affirmed the power of voters to decide sensitive issues, as a key point in favor of the voter-approved gay-marriage bans now being challenged.
Bursch, 42, now is in private practice at the Warner, Norcross and Judd law firm in Grand Rapids, Michigan. The firm said it is playing no role in Bursch’s argument in defense of state same-sex marriage bans.
A graduate of the University of Minnesota law school and Western Michigan University, he was a law clerk to Judge James Loken of the 8th U.S. Circuit Court of Appeals in St. Louis.
Hallward-Driemeier cheerfully acknowledged that he would rather not have the court decide the issue he is going to argue — that states must recognize same-sex marriages performed elsewhere. That’s because he would rather have the justices settle the larger issue of the right to marry.
“We think there’s a fundamental right for same-sex couples to marry and we think that pretty much ends the question” about recognition, Hallward-Driemeier said on a conference call with reporters.
The Harvard Law School graduate is an experienced Supreme Court advocate with no previous ties to same-sex marriage cases. Tuesday’s argument will be his 16th at the high court.
Hallward-Driemeier, 48, heads the appellate practice at Boston-based Ropes and Gray. He spent several years at the Justice Department and before that was a law clerk to Judge Amalya Kearse of the 2nd U.S. Circuit Court of Appeals in New York. He is a St. Louis-area native who graduated from DePauw University in Greencastle, Indiana.
He met his wife, the former Mary Hallward, when both were Rhodes Scholars at Oxford University in England. When they married, they combined their last names.
Verrilli is the most familiar face to the justices among the five lawyers they’ll hear from on Tuesday. He will follow Bonauto in support of a ruling forbidding states from limiting marriage to the union of a man and a woman.
Verrilli, 57, has spent nearly four years as President Barack Obama’s solicitor general, arguing a half-dozen or so cases at the Supreme Court each year.
Among them was the epic re-election campaign year fight over Obama’s health overhaul in 2012. The administration prevailed by a 5-4 vote on the basis of a secondary argument Verrilli made before the skeptical court.
He was on the losing end of last year’s fight over whether corporations can express religious objections to avoid paying for contraceptives for women covered by employer health plans.
Before joining the administration in 2009, Verrilli was a partner at the Washington firm of Jenner and Block. His Supreme Court work included advocating for the rights of death row inmates and representing telecommunications firms in cases with billions of dollars in the balance.
A graduate of Yale University and Columbia Law School, Verrilli was a law clerk for Supreme Court Justice William Brennan.
Whalen will be making his first Supreme Court appearance to argue that states should not be forced to recognize same-sex marriages performed elsewhere.
Whalen laid out Tennessee’s justification for restricting marriage to a man and a woman during arguments last year at the 6th U.S. Circuit Court of Appeals in Cincinnati.
“The legitimate interest of the state is to ensure that when children are born, particularly children who are born and the pregnancy is accidental, that they will be born into stable family units, i.e., marriage,” he said.
Though he has worked for Tennessee’s attorney general since 1999, Whalen spent his first 40 or so years in Massachusetts. He received both his undergraduate and law degrees from Boston University and spent time as a county prosecutor and assistant attorney general of Massachusetts.
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