Knowing Your Audience – What Not to Do at Oral Argument

On April 28, 2015, the United States Supreme Court heard arguments in Obergefell v. Hodges, the lead case in consolidated cases from the Sixth Circuit, which upheld the rights of states to exclude same-sex couples from marriage (or any other form of legal relationship for that matter). The conventional wisdom is that SCOTUS will strike down the bans and the parlor game now is whether Chief Justice will join the majority.

Assuming the Chief Justice is a no vote, the key swing vote will be Justice Kennedy, who has written the three major gay rights decision for the Court (Romer v. Evans, Lawrence v. Texas, and United States v. Windsor). It was a bit puzzling, then, to hear the lawyer for Michigan argue to the Court that the state was only interested in “responsible procreation” and that the state had no interest in the dignity of married couples. Setting aside that the dignity of the status of marriage is what, theoretically, makes it attractive and therefore encourages “responsible procreation,” it was an odd argument to make in light of Justice Kennedy’s opinions in Lawrence and especially Windsor.

In Windsor, Justice Kennedy used the word “dignity” ten times if my count is correct. He used the word at least three times in Lawrence. Justice Kennedy predictably bristled at this argument. Dignity is a big deal for him, so arguing that it doesn’t matter seems counterintuitive at best.

As a marriage equality supporter, seeing the state’s lawyer blunder in this fashion elicited a bit of schadenfreude for me. As an appellate advocate, all I could think was, had he read Windsor? A basic component of the art of persuasion is knowing your audience. Making an argument that is likely to provoke the deciding justice seemed unwise from an advocacy standpoint. If Justice Kennedy ends up writing a decision in favor of the plaintiffs, they should consider sending a bouquet to the state’s lawyer for his unintended assistance.

Kenneth J. Bartschi