Marriage equality advocates say they have reason to be encouraged by this morning’s proceedings at the U.S. Supreme Court, especially because the justices seemed concerned about the children of couples who don't have legal recognition.
Attorney Douglas Hallward-Driemeier was quick to caution, of course, that it's a dangerous business to guess how the court might rule. "I think it is very hazardous to guess the outcome of a case based on the questions that the justices asked," he said, noting justices are always "very interested in and probing." It's their job.
"We do think that it is critical," said Hallward-Driemeier of the concern about children after finishing his argument before the high court, "given that one of the primary interests the state purports to be advancing here is the well being of children. But of course the children of same-sex couples count no less than the children of opposite-sex couples and yet the state denies them the very stability and protections of the law that they afford the children of opposite-sex couples. And so we do think that it is highly significant that the court recognizes — as they indicated they do — that same-sex couples do have children, and that their interests are very much at stake here."
John Bursch, the lawyer who defended the state marriage bans, dismissed the idea that families could be a determining factor. "Different marriage laws help and don't help different people," he told reporters afterward, "but that's really not what the case is about."
Mary Bonauto, an attorney with Gay and Lesbian Advocates and Defenders who argued on behalf of the parents who are Michigan plaintiffs, April DeBoer and Jayne Rowse, also seemed encouraged by the focus on children. Bonauto spoke in court of marriage as the foundation of family. She noted that Justice Anthony Kennedy, seen as the key swing vote on the court, mentioned that parents and children need not be related biologically to have an emotional bond.
Kennedy provided another particularly notable moment in the hearing, said GLAD executive director Janson Wu, speaking by phone with The Advocate. "There was this moment when Justice Kennedy talked about the 'noble purpose' of marriage and how gay couples understand that as well as straight couples," Wu said.
"Michigan is in the position of having placed and approved of placing several intensely vulnerable children with the Michigan petitioners who have nurtured those children to become healthy young kids," said Bonauto in the news conference after the hearing. "They are in the position now of saying because these parents did not conceive them together that they are somehow, these children are to be denied the protection and the support of having parents when Michigan in a heartbeat would allow any different sex couple who adopted to be able to married without regard to the idea of whether the couple had conceived them."
The couple was also optimistic after the hearing, with DeBoer telling reporters, "We stand before you one step closer to being a legalized recognized family in the state of Michigan."
“From the beginning, and for the last four years, this has been about protecting our children, and providing them with the legal benefits and stability of a family united by marriage,” said DeBoer in a separate prepared statement. “Today we have so much hope that the Supreme Court will allow families like ours to have the same safety and security as all other families, and we know we’ve now done everything possible to achieve that.”
Wu said it was "just thrilling" to see Bonauto argue before the court, adding, "Everyone on our side was brilliant — articulate, passionate, and engaged." The plaintiffs as well as the lawyers represented gay Americans well, he said, making him "feel optimistic for a good outcome."
Evan Wolfson, founder and president of Freedom to Marry, also expressed optimism about the outcome of today’s hearing. “The case for the freedom to marry shone through at every turn in the argument, undimmed and undeniable, and it should be clear to a majority of justices, as it has been to a cascade of lower courts and a national majority for marriage, that there is simply no good reason, no just principle, no argument, no evidence to justify perpetuating marriage discrimination any longer,” he said in a prepared statement.
Watch video of the plaintiffs news conference via CSPAN: