Thoughts on Bostic v Rainey oral arguments

Wedding-RingsSince leaving the courthouse Tuesday, I’ve been mulling over what I witnessed. Combined with my day in Richmond Wednesday, it has been a whirlwind week.

Setting the scene
Leaving for court and knowing no electronic devices were allowed inside, I made a conscious choice to take notes in a notebook that I received at the screening of HBO’s “The Loving Story.” It just seemed appropriate, given all of the references to Loving v. Virginia that have been a part of this push for marriage equality. (Besides, it was that night that I had the opportunity to ask one of the attorneys who argued the case, Bernard S. Cohen, if he thought the marriage equality question would use Loving as precedent; he said yes.)

I thought I was getting there early but I had to wait in line for admittance. You’ve probably seen the photos – those supporting traditional marriage, including E.W. Jackson, were on the sidewalk outside of the courthouse, while those supporting marriage equality were on the sidewalk across the street. The demonstrations by both groups was peaceful, each carrying signs supportive of their positions.

The U.S. Marshalls – I saw Bobby Mathieson there – were slowly letting in a few of us at a time; not their fault – there is only one scanner. I got inside and, spotting my notebook, was told to sit with the press. We were seated on the left, in the first three rows, just behind the plaintiffs. As I slid in, the “All Rise” command was given.

Inside the courthouse
I’d never been inside this courthouse before. I’m not sure what I expected but the word that came immediately to mind was that this courtroom was imposing. The paneled walls, the size of the judge’s bench – just an amazing look. I’ve searched for photos of the inside of the courtroom but have come up empty. One thing is certain: the artist’s rendering I posted doesn’t capture it. The judge looked so small as she peered down at the speakers. I watched her as speaker after speaker argued his case. She smiled and nodded, and thanked each, before moving on to the next. The only question she asked while I was there – I had to leave at 11:30, about 20 minutes before the hearing ended – was that one of the attorneys lower his voice.

Much has been made of the AG “switching sides” in this case. Interestingly enough, the commonwealth’s lawyers were seated on the right, along with all of the other defendants in the case.

The arguments
By now, you’ve no doubt read reports of what was said inside the courtroom. As expected, Loving was invoked, along with other cases with which we are probably all familiar,  including Lawrence v. Texas, Baker v. Nelson, and Romer v. Evans. The arguments against marriage equality were pretty much what I expected: marriage is between a man and a woman, it’s always been this way, children deserve two opposite sex parents, and so on. But there were a few new-to-me twists to the arguments.

One was that, despite the holdings of the U.S. Supreme Court that say otherwise, there is no fundamental right to marriage. One said that marriage isn’t a constitutional issue because it is ancient.

Another argument was made that every case in which SCOTUS has ruled that marriage is a fundamental right, that right has only applied to heterosexual couples. No doubt somebody made the argument along the way in Loving that marriage only applied to white people.

I learned that 99% of children born have both a mother and a father – I’ve Googled to try to find out about the other 1% and have come up empty – and that “potentially procreative couples” are the reason for the institution. Oh – and “accidental marriage,” which, I learned, happens because of “accidental procreation.”

I didn’t realize that the Bostic case was seeking a preliminary injunction; plaintiffs’ attorneys argued in favor of one that would affect only the four defendants. Every one else, include Virginia’s solicitor general, argued that a preliminary injunction, if issued, be accompanied by an immediate stay. Honestly, I think that’s reasonable, given what’s happened in Utah when the judge did not issue a stay immediately. The marriages performed in the interim are in limbo, as the case winds its way through the appeals process, just as this case will.

The other part of the arguments that I found fascinating was the level of scrutiny to be applied. Recall, if you will, that the AG is in favor of strict scrutiny. Those opposed to marriage equality prefer the lower rational basis standard.

Virginia’s ban on marriage equality received a full-throated defense. In fact, I was a little perturbed at how full it was. The attorney for the Norfolk Clerk of Court went further than he had to, in my opinion. I felt he could have stopped at “the clerk is upholding the law;” after all, he made a quite reasonable argument that the second couple in the suit had not been harmed by the clerk and their claims against him should be dismissed. But he went into the whole state’s rights argument and was the one who made the argument that the fundamental right to marriage only exists for heterosexual couples.

And the guy representing the Prince William clerk – a walking soundbite – “We have marriage laws because of the children, not because of the adults” – certainly gave it his all.

Anyone claiming the law wasn’t defended wasn’t in the courtroom.

The aftermath
I don’t know this judge. As it turns out, she and I have some things in common, including being the same age. She has said she will issue her ruling “soon,” which some have taken to mean within the next month. I expect she will rule in favor of the plaintiffs, but in truth, I’m not sure it matters. The loser will be appealing this case to the 4th Circuit, and then to SCOTUS. So this is the first step in a fairly long journey.

Last update: 6:39pm same day

6 thoughts on “Thoughts on Bostic v Rainey oral arguments

  1. Wow, thanks and so glad you had the time to share, in such detail, how it all unfolded on Tuesday. I had the feeling some of the protesters on the side of upholding the ban were from other areas – and, if so, I guess that’s only to be expected in such high profile cases.

    You gave a great visual of not only the setting, but of the unfolding arguments and individuals who spoke (some surprising,) It sounds like it was as exciting to be there and see as I imagined it would be. Thank you, again, for keeping us up to date on all the goings on regarding this issue.

    1. I honestly can’t say it was exciting – or at least that wasn’t the emotion I felt. I can’t put my finger on a word to describe what it was like to watch these men – all of the lawyers were white men – argue their points before this small black woman who will make the decision.

      It was certainly a history-making day, regardless of the outcome.

      1. How about “surreal?” Considering the weight of the moment and the imposing nature of the room, it’s kind of surreal that things like this are decided by ordinary people.

  2. Well written — with the exception of one number-agreement problem that detracts from the post:

    “I watched her as speaker after speaker argued THEIR case.”

    As always, just delete this comment! 😉

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