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Gay Marriage 2015-A #DeepLez Investigation of the SCOTUS Trial

Not sure of what happened during the SCOTUS trial? Want to woo your love interest with your #DeepLez knowledge of the law of current events over brunch?

Well, look no further. AfterEllen is here to help. Here’s all you need to know about last week’s trial.

Last Tuesday, the Supreme Court heard the oral arguments for Obergefell v. Hodges, the case that will determine if gay marriage extends across the United States, becoming a federal right rather than a state right.

Obergefell v. Hodges is actually just one of the petitions; the trial represented a collection of four different petitions, challenging extant state laws in Ohio, Tennessee, Michigan, and Kentucky-four of 13 states that currently prohibit same-sex marriage.

The pro-LGBT petitioners of each case collectively hinged their argument on what is commonly referred to as the “Equal Protection” clause of the 14th Amendment, which states “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” These petitioners explicitly called upon the 14th Amendment because it was the reason cited in Edie Windsor‘s Supreme Court victory in 2013; the “Equal Protection” clause invalidated a proviso in DOMA that denied same-sex couples the same federal benefits as hetero-married couples.

Pretty simple, right? We know that citizens who want to marry a partner of the “same sex” are, to quote the HRC, legally denied “1,138 benefits, rights and protections provided on the basis of marital status in Federal law.”

That same-sex marriage has been relegated to the states has resulted in a patchwork of laws-a legal and bureaucratic nightmare for any same-sex couple who may move between states or having varying citizen statuses (i.e. those dealing with federal matters like immigration).

Considering the two 2013 Supreme Court victories for the LGBT community (United States v. Windsor and the Prop 8 case, Hollingsworth v. Perry), and the fact that anti-gay marriage laws are falling like dominoes across America (37 states allow same-sex marriage), it may seem like this victory is a certainty.

Well, it’s not.

While the verdict doesn’t arrive until the last week of June, reading the SCOTUS transcripts from last week’s trial reveal how victory for our community is still very much up in the air-especially considering, as the following breakdown shows, that the lawyers for both sides come across unfavorably.

Out of the gate, the lawyer representing the LGBT petitioners, Mary Bonauto, evokes the 14th Amendment as the primary argument:

Chief Justice John Roberts jabs first, and is like, Gays don’t want to join the institution of marriage, they want to “redefine” it. And then notorious swing voter Justice Anthony Kennedy evokes historical precedent-that marriage has been defined between a man and a woman for a “millennia”-to throw a wrench in Bonauto’s argument.

Bonauto, not knowing how to respond, returns to the 14th Amendment-she’s going to keep repeating it until the trial is over. But it doesn’t help, and then Justice Samuel Alito piles it on, until RBG steps in to basically lend a sister a hand. She’s like, Our definition of marriage today, between a man and a woman, is not a millennia old, because historically women have not been considered persons. Marriage was an auction, and women were prized cattle.

And Bonauto jumps in with a “That’s correct!” and wipes her brow. (WTF, Mary, get your shit together!) But Justice Alito isn’t done, and he’s all like, Ancient Greece respect homosexuality but only had hetero-marriage, see! And Bonauto stumbles again. Instead of being able to deconstruct the faulty comparisons between Ancient Greece and 2015 America-she doesn’t rejoinder with any cultural historicization of identities or even the concept of “homosexuality”-she’s like um, um, um, “I can’t speak to what was happening with the ancient philosophers.” Then she apologies and then returns to the 14th Amendment. But Justice Alito is in for the kill; he uses the homophobic-logic of “If gays marry, then people will be marrying ‘tables and clocks‘ next” for his next hit.

And while people laugh, he’s “high-fiving a million angels,” and Bonauto responds that marriage is “the mutual support and consent of two people.” And keeps drilling that 14th Amendment, until Justice Anthony Scalia chimes in with a question about whether religious figures can refuse to marry gays – i.e. the “religious liberty” argument.

Instead of being like, Fuuuuuck no! Religious institutions get mad tax exemptions, so they can’t pick-and-choose which parts of civic society they want to partake in, Bonauto’s all like, Of course clergy can refuse to marry homos. Even Scalia counters the implied argument of his question when he says a clergy member should have to marry gays, because “he’s conducting a civil marriage, he’s an instrument of the State…. You can’t appoint people who will then go ahead and violate the Constitution.” There’s a flurry of comments, like a dinner scene in a Woody Allen film, and then Bonauto stands aside, to give her colleague, General Donald B. Verrilli, the floor .

General Verrilli then is the second lawyer for the petitioners, and he’s here to speak specifically about “the children.” OH, THE CHILDREN! The little leeches were used in the Hollingsworth v. Perry case as the reason why gays should be able to marriage-to make sure “the children” grow up in a “stabilizing structure that marriage affords.”

Blah, blah, SO MANY GAYS HAVE CHILDREN. Do you watch ABC Family? But General Verrilli does make a strong closing statement-reiterating the 14th Amendment, of course:

The state of Ohio’s lawyer, Mr. John Bursch, is up-and it’s equally not as pretty. His argument is that same-sex marriage “threatens” the sanctity of hetero-marriage. Remember that “gaythering storm“? Yeah, that’s This Guy’s argument. But Justice Sotomayor is here to nip that shit in the bud:

And then Justice Steven Breyer is all like, Yeah! Yeah! I’m gonna toss my liberal questions in here, too, and ream you on gays being denied this “fundamental liberty”! And Bursch claims the intention of marriage was never to develop a class hierarchy (cough-bullshit-cough); rather, he contends that purpose of marriage is procreation, and keeping children with their biological parents.

Ohhhhh shiiiiiiiiiit. The lady justices are having none of that crap. They’re like, marriage can’t just be legal to those who plan to have children, because not all hetero-married people want or have kids, and you can’t discount adopted children, and some even, after a divorce, walk away from their kids. And then RBG Ginsburns Bursch’s ass with this example:

(Speaking of Ginsburn….did you catch Kate McKinnon on SNL this weekend?)

And Bursch is also a misogynist and responds, “Well, a 70 year-old man, obviously, is still capable of having children,” and all the lady justices FACEPLANT.

The argument then, quelle surprise!, returns to the 14th Amendment, with Liberal White Guy Justice Breyer slamdunking the whole trial for ALL THE GAYS, saying, “the right to be married is as basic a liberty, as basic a fundamental liberty, not the right of privacy, the right to be married, which has existed for all of human civilization, that that is the right which is fundamental.”

Then Justice Sotomayor takes Bursch to task for reasoning that same-sex marriage jeopardizes not only hetero-marriage, but the bond straight parents have with their children. To which Bursch offers the most amazing gem to be offered at the trial-he answers saying, If you let gays marry then straights will think marriage is about love and stuff, and, DUH, it’s certainly not about that!

And for a minute the entire universe feels bad for straight people, cuz if that’s what they think marriage is about then no wonder everyone is so eff’d up; no wonder “queers” protest the institution. How dare gays make marriage about mighty real feelings?!

Bursch, on his “gaythering storm” hobbyhorse doesn’t let up, but Justice Kagan, alluding to myriad court precedent, drives the nail into the defense’s coffin.

After a few more minutes of Bursch emphasizing his argument, Bonauto is given the floor for the final three minutes, and she rehearses her argument, and that’s it, folks, until June.

The short conjecture: recent court precedent in favor of same-sex marriage, coupled with oral statements by the three female Supreme Court justices (Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor and Justice Elena Kagan), and the overwhelming public approval (which functions not as legal cause but as cultural reason), will tip the scale in favor of federal marriage equality.

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