I was pretty bummed after months of planning to go to the oral arguments in the Varnum v. Brien case today that my ride decided that it wasn’t likely enough that we would get a seat in the courthouse and changed his mind, but I understood and due to the freezing rain it was probably a smart call anyway. Instead, I watched the arguments at a OneIowa viewing party here in Iowa City. These are my thoughts.
- The lawyer for the defense, a Mr. Cool, was disrespectful to the court, bumbling, and just not all that great. He barely answered a question, he stumbled a lot, he ran himself around in circles, he contradicted himself, he often told a justice that he didn’t want to answer a question or that the question wasn’t good, and twice he reminded the court that his time had run out. He held his folders in his hand at one point and looked like he just wanted to get the hell back to his chair. This isn’t substantive, but I hope it will make the court look less kindly on his arguments.
- The defense presented a lot of weak arguments that haven’t worked well in other states. The focus was heavy on procreation, and the justices all hammered the attorney on that point, wanting to know what heterosexual marriage has to do with raising a healthy family. You could tell that the attorney knew he was backing himself into a corner and he never really made his way out.
- He also relied pretty heavily on the rational basis test, which the court very well may use, the but the court repeatedly asked him about strict or heightened scrutiny and he couldn’t answer. Probably because if they apply strict scrutiny, he’s screwed.
- The court mentioned a very recent Iowa case called Mitchell that I don’t know but apparently it requires the plaintiff when arguing no rational basis not only to argue that the government has no rational state interest but also to provide specific evidence to back it up. The problem is that our side has the burden if the court picks rational basis, and the court basically said that neither side has any decent social science evidence despite thousands of pages submitted.
- It seems at least possible that they’re going to reverse the District Court on the affidavits that it refused to accept, affidavits from experts including religion professors and a history professors about heterosexual marriage being traditional, etc. etc. The reason for not accepting those affidavits is that they were personal opinion rather than actual expert testimony, but there was a whole run-around about legislative vs. adjudicative facts and one justice asked whether the case should be remanded or decided if it didn’t agree on that point.
- One that had the law students in the room kind of gritting our teeth and holding our breath was a question about polygamy. The defense focused a lot on the “four thousand years” of marriage and tradition and the danger of marriage being eroded in a generation domino effect blah blah blah. The court then asked the attorney for the plaintiffs what the line is for the definition of marriage, i.e., if we’re allowing gay marriage why aren’t we allowing polygamy? That was a tough question, though I do think he managed to squeak out of it with an explanation that polygamy changes the actual structure of marriage while same sex marriage only changes the people who can enter into that structure. Granted, I don’t really have a big problem with polygamy myself, but I think he handled it pretty well.