Marriage Equality


My thanks to Liberation News for posting my thoughts immediately after yesterday’s arguments in the marriage equality cases:  Struggle for Equality at the Supreme Court.

Please see that link for my analysis of the content of the arguments.  For the Court-watcher readers of this blog, I’ll add a few more random thoughts about the argument-day-as-event:

Accessibility has become a real problem. For the general public, attending this argument would have meant taking three days off work or hiring someone to stand in line for you.  Interesting stories about that in Slate and the NY Times.  I spent many mornings in the public line while in law school, and I don’t remember anything like this–5am the morning of was usually plenty early.  The trouble seems to be that spots in line have become commodified, and it is now not only possible but really necessary to buy your way in. 
Members of the Supreme Court Bar get a separate line and seating area, but it too fills up quickly.  I had resigned myself to being in the “lawyers’ lounge,” a kind of overflow room (a very nice one) where at least we get audio.  Even so, I got on line by 6am and was number 77 for 100 seats. One bar member was in line since noon the day before and yet was in the lounge with me—the courtroom seats were all taken by people who had been there or hired people to be in line for them for at least 24 hours.  Another bar member I’d gotten to know two years ago when we stood next to each other from 4am waiting to get in to the DOMA arguments (and yet were in the lounge; I had made it into the Courtroom the day before for Prop 8, but just barely, and despite a desire to get there earlier, I was moving much more slowly on day two of no sleep…) began lining up on Saturday.  She said she broke down and hired a line-stander but only for a few hours early Tuesday, so she could get a shower before the arguments.  

Inside the courtroom, someone disrupted the arguments, yelling after Mary Bonauto finished her opening argument. Something about Hell; fairly incoherent, and I don’t think just because he was hard to hear. I had seen one disruption before, some years ago, and the Supreme Court Police carried them out with remarkable efficiency.  But this time, the person could be heard yelling for several minutes. Scalia remarked, “rather refreshing, actually.” Jeffrey Toobin had more to say about this episode.  

To end on a positive note, Verrilli was great! The Administration is still constraining him to argue only the equal protection theory, not the fundamental rights theory (which is my bet for what gets Kennedy’s vote), but I think that’s a good thing (not that they’re going to decide based on heightened scrutiny, but it’s at least taking a shot at pushing them there).