The “Making the Case” Transcript

Read Dahlia Lithwick’s conversation with one of the lawyers who argued last months’ big gay-rights case at the Supreme Court.

Dahlia Lithwick illustration by Charlie Powell.
Dahlia Lithwick.

Photo illustration by Slate. Illustration by Charlie Powell. Photo by Thinkstock.

We’re posting transcripts of Amicus, our legal affairs podcast, exclusively for Slate Plus members. What follows is the transcript for Episode 17, where Slate’s Dahlia Lithwick takes you inside the courtroom for the arguments in Obergefell v. Hodges, last month’s much-anticipated gay marriage case at the U.S. Supreme Court. Dahlia is joined by Douglas Hallward-Driemeier, one of the three lawyers who argued against same-sex bans. To learn more about Amicus, click here.

We’re a little delayed in posting this episode’s transcript—apologies. This is a lightly edited transcript and may differ slightly from the edited podcast.

Dahlia Lithwick: Welcome to Amicus, Slate’s podcast about the Supreme Court. I’m Dahlia Lithwick, Slate’s Supreme Court correspondent, and as you probably already heard, this was a great big fat week at the Supreme Court. Folks started lining up five days before arguments to get a seat in the chamber for Obergefell v. Hodges, the gay marriage case heard this year.

And, by Tuesday, the day of oral arguments, the plaza outside the court was teaming with balloon and banners, evangelicals and Hassids carrying signs explaining their positions and protestation on gay marriage. There was a bevy of protesters, one of whom actually made his way right into oral argument and had to be dragged bodily out of the chamber, screaming at the top of his lungs, by what seemed like five or six marshals.

Today on Amicus, we’re going to bring you some of the highlights of the ensuing two and a half hours of historic argument, and we’re going to bring it right into your ear buds. Here with me to discuss this historic appeal is Doug Hallward-Driemeier of Ropes & Gray. He was one of the three lawyers who argued on behalf of the plaintiffs—the same-sex plaintiffs, who want their marriages recognized in their states.

Doug has argued 15 cases at the high court. Well, 16 now, and he—s filed more than 150 briefs there. He served as assistant to the solicitor general in the US Justice Department. We’re delighted to have him here with us. Doug, welcome to the show.

Doug Hallward-Driemeier: Thank you, Dahlia, so glad to be here with you.

Lithwick: I think it would be incredibly helpful for listeners if you could unpack the two different questions, because I think a lot of folks don’t realize that there were even two questions briefed and argued at the court.

So, you argued one, Mary Bonauto argued the other. Could you help our listeners understand what the two distinct issues were, which one you argued and which one Mary argued?

Hallward-Driemeier: Sure. I think most people are familiar with the first question, which is the one that rightly, I believe has—had the most attention. And, that is, do the states under the 14th amendment, which guarantees equal protection of the laws to everyone, it protects basic liberties from being denied by the states, do the states have an obligation to allow same-sex couples to get married?

That’s the basic question on question one. And, the second question really only arises if the court were to decide no on the first question that the states don’t have to allow same-sex couples to marry. But, if that is so, the states can decide not to do that. Well, we already have a situation in this country in which many states do allow same-sex couples to get married and there are hundreds of thousands of couples who have already made that legal relationship between them.

And, so, the question would arise, does another state that doesn’t allow as a matter of its own state law, same-sex couples to get married, do they still have to recognize that a couple that has married in another state and moves to their state for example, is married and do they have to treat that couple as married and respect that legal status that they’ve already established.

So, those are the two questions as I said. The second one really only is something the court has to get to and grapple with if they decide no on the first question.

Lithwick: Could you tell us, Doug, a little bit about some of your clients, some of the folks who married in one state, seek to be recognized in another, just so we can have some names and faces?

Hallward-Driemeier: Sure, and their stores really are so compelling, in part because we can identify with them. So, for example, we have Valeria Tanco And Sophy Jesty. These are two veterinarians. They met and fell in love when they were in graduate school studying in New York and they got married while they were there. And, as many of your listeners will know, couples who are looking for joint academic postings often find that there aren’t a lot of options where they can get academic positions in the same city.

And, so, they were lucky. They found positions for each of them in Knoxville, Tennessee. And, since they’ve moved there, Dr. Tanco has given birth to their daughter, who I’ve met and is just gorgeous. And, the question for them is, does the state have to recognize the legal relationship between them? And, it has a lot of different effects on them. For one, they’ve been unable to get a single family health insurance policy. Instead, they have to get two separate health insurance policies. But, it also has even more dramatic impact on them.

Just last week, their daughter was in the hospital. Under Tennessee’s law, Dr. Jesty would not be regarded as a mom, she wouldn’t have a right to be there with her daughter, she wouldn’t have a right to help make medical decisions about her daughter if Dr. Tanco weren’t there and available. So, as I say, these laws have real impact for real people.

Another of our couples are Sgt. Daku and Mr. Costura. Sgt. Daku and his husband were married just before Sgt. Daku was shipped to Afghanistan to fight for the United States on behalf of us all. And, when he came back, the United States army transferred him. They didn’t ask. This was not a question. He was assigned to a base in Tennessee. So, you know, again, without any choice in the matter at all, his and his husband’s relationship is denied by the state because the army has transferred him.

And, there are many other couples who I think we had a total of 15 couples in the case, but their stores are the same. They are like any other married couple and all of the protections that state law provides to marriages to reinforce them, to provide the safety net if things go long, are denied to these couples, just on the basis of their sex and sexual orientation.

Lithwick: Now, I want to take you to oral argument itself and play a little audio for you. And, it seems to me, I think we can stipulate that all eyes were on Justice Anthony Kennedy. One can say that almost every time we do this show, but all eyes were really, really on Justice Anthony Kennedy this week. And, he came out almost right out the door, telling Mary Bonauto, in that first question you mentioned, the question about whether states have to recognize the constitutional right to gay marriage, he came out explaining his kind of theory of the case. This is what he said:

Justice Anthony Kennedy (audio): One of the problems is, when you think about these cases, you think about words or cases and the word that keeps coming back to me in this case is millennia. A plus time. First of all, there has not been really time, so the respondents say for the federal system to engage in this debate. The seperate states. But, on a larger scale, it’s been—it was about, about the same time between Brown and Loving, as between Lawrence and this case. So, about 10 years.

And so there’s time for the scholars and the commentators and the bar and the public to engage in it. But, still, 10 years is, I don’t even know how to count the decimals when we talk about millennia. This definition has been with us for millennia. And, it’s very difficult for the court to say oh well, we know better.

Lithwick: So, first of all, this is classic Kennedy, right? There’s one word and it’s millennia, and also time. So, there’s actually two words that he’s packing into that idea and one is the one you just heard, which is, who are we to overturn a notion that is so old that we don’t know how many decimals are in it? So, Doug, I guess my first question, in so far as Kennedy is the determinant of whether you win or lose, did your heart just hit the floor when he said that?

Hallward-Driemeier: No. I think that the question is one that could easily be anticipated from the decision that he wrote in the Windsor case, which was a case that was decided by the Supreme Court just two years ago, and it was the question then, whether the federal government had the authority to refuse to recognize marriages that had been made lawful under state law. And, the court held that it was a violation of those protections that we were talking about before of equal protection of the law or the denial of liberty without due process, when the federal government said, we are not going to recognize for all of the benefits that are provided under federal law to married couples, those married couples who are of the same sex.

But, in the process of writing that decision, which obviously came out in favor of the same-sex couple, Justice Kennedy talked about the fact that it is only recently that this question has arisen. Up until very recently it was just sort of accepted wisdom, if you will, that a marriage was between a man and a woman. And, so, he’s really just reiterating that question here. But, it’s equally important—the clip that you played had, I thought two parts and the second part of the question is at least as important as the first, and that is recognizing that our conceptions of the relationship of marriage can change, and sometimes they change pretty quickly.

And, he mentioned the short span of time between the Supreme Court’s decision in Brown v. Board, which held that the states could not deny equal dignity to blacks in education, was that case, to Loving, which was a case in which the Supreme Court held that the states could not limit marriage to couples of the same race. So, that was also a tradition, with respect to marriage, at least in this country, that in many, many states and it had been so in Virginia since colonial times, that marriage was between two people of the same race.

So, when the court decided that question, they were clearly going against tradition in one respect, but they were validating an even more fundamental tradition we had not lived up to, and that is equal dignity in the law. So, it’s about as much as time as between Brown and Loving, as between Lawrence and today and that I think is really the more important part of his question there.

Lithwick: And, yet, it seems to me, Doug, that the very best argument on the other side really is this process argument which is, hey, who are the courts to tip the apple cart? The states are going to get there eventually and in fact, it’s so much more noble and dignitary if the states and the voters in states make this decision on their old steam, rather than being told what to do, having it imposed brutally by the judicial branch. So, let’s listen if we could to I think John Roberts giving real voice to this argument. This is not an argument, right, on the merits about the constitutional right, this is an institutional argument that is, if you’re going to do this, let the people do it themselves. Here’s John Roberts:

John Roberts (audio): You’re quite right that the consequences of waiting are not neutral. On the other hand, one of the things that’s truly extraordinary about this whole issue is how quickly has been the acceptance of your position across broad elements of society. I don’t know what the latest opinion polls show. The situation in Maine I think is, is characteristic. In 2009, I guess it was by referendum, whenever they banned gay marriage. In 2012, they enacted it as law. I mean, that sort of quick change has been a characteristic of this debate.

But, if you prevail here, there will be no more debate. I mean, closing a debate can close minds and it will have a consequence on how this new institution is accepted. People feel very differently about something if they have a chance to vote on it, than if it’s imposed on them by the courts.

Lithwick: To me, that seemed like a very deft phrasing of the other side’s argument, and I wonder if you want to react both to the idea that this is just imperial judicial behavior and that the states are getting there anyway, so why not have it be more legitimate? He’s very careful to say, look, there is a cost to your clients of waiting, but perhaps the benefit of waiting outweighs that.

Hallward-Driemeier: Well, I think—I’d like to make two points in response. One is actually a point that Justice Kagan later made in the argument, and that is that we’re not just a democracy, we’re a constitutional democracy and it is emphatically the role of the judiciary to interpret what the constitution requires. And, so it’s not simply something that the courts can take a pass on. Or, I guess they could have taken a pass or at least the Supreme Court could have taken a pass by not granting cert.

But, the question is before the court now and they have to decide. And, that leads me to the second point is that a decision to allow this debate to continue is not neutral. If the court holds that the states may exclude same-sex couples from marrying, that will be a constitutional decision that these marriages aren’t really marriages in the constitutional sense. And, so, forever, as a constitutional matter, these marriages will not have same constitutional dignity as the marriages of opposite sex couples.

And, so, it’s not simply a question of letting it continue to percolate, if you will, among the voters, the Supreme Court would have to say—because they’ve already held in a number of other cases, that opposite sex couples have a fundamental right to marry and that their marriages, because of the fundamental importance to the couples, they have a right and interest in maintaining those marriages. So, for the court to rule against the plaintiffs in these cases, they would have to hold that that protection does not extend to same-sex couples and that’s not a neutral decision.

Lithwick: I wonder, Doug, if you could turn to what I thought was kind of a subtext throughout this entire argument, and that was the side conversation that looked like it was more about state RFRAs, right, these Religious Freedom Restoration Acts and the perceived backlash against religious people that the argument goes, comes at the more gay rights at expressly protected constitutionally, the more religious people are going to see their own religious freedoms encroached upon.

This is not really an issue at the heart of the case, I don’t think, but it’s certainly a concern, evidently a real legitimate concern for the some of the conservative justices. Let’s listen to Justice Scalia articulate his view of what happens if we create a constitutional right to same-sex marriage.

Antonin Scalia (audio): I’m concerned about the wisdom of this court imposing, through the constitution, a requirement of action, which is unpalatable to many of our citizens for religious reasons. They are not likely to change their view about what marriage consists of. And, were the states to adopt it by law, they could make exceptions to what is required for same-sex marriage, who has to honor it and so forth. But, once it’s made a matter of constitutional law, those exceptions—for example, is it conceivable that a minister who is authorized by the state to conduct marriage can decline to marry two men, if in deed this court holds that they have a constitutional right to marry?

Lithwick: So, my two questions for you, Doug, if you don’t mind, one, why do you think this issue comes into argument this week? It’s not really an issue that the court needs to worry about, I don’t think. But, two, what’s the answer to this question of, as we enlarge LGBT freedoms, we are taking away the religious freedoms of those to who oppose it?

Hallward-Driemeier: Well, to your first question of why does this arise in the argument, there were a number of the amicus briefs in particular—amicus briefs, like the title of this podcast, are friends of the court. People who are not parties but are raising issues that they think the justices should be thinking about as they decide the dispute between the parties before them. And, there were a number of the amicus briefs on the other side, on the state side of this case that said, well, one of the problems here, court, if you decide this is that you’re going to take it out of the legislatures.

And, the legislatures, when they have decided this issue is a matter of state statutory law, have usually done so at the same time that they are kind of, as a matter of compromise, accommodating the religious objections of some people from feeling that through state anti-discrimination laws or otherwise, would be forced to somehow participate in providing, you know, the wedding cake, or the venue for the reception, to same-sex couples who are getting married.

But, I agree with the second question, which I think is, you know, this really doesn’t have much relevance to these cases, in part because the cases are only about what the states must do. It’s not about what private parties must do, whether they may or may not discriminate against others. Secondly, there’s another part of the constitution that already protects the religious liberties of people, especially of clergy, and there was another set of questions later on that followed this, that really highlighted that this is nothing new, this is something that already exists.

And, so, rabbis who have a religious objection into marrying interfaith couples can decline to do so and there’s nothing in the constitution that would require them to officiate at those weddings in contravention of their religious beliefs. And, likewise, if we go back to Loving again, because I really do think the parallels between the Anti-miscegenation laws, laws against interracial marriage and these are so close, that trial court in the Loving case was explicitly relying on, and understand of the bible that held that God had put the people of different races on different continents and separated them because they were never supposed to intermingle.

And, so, interracial marriages was contrary to God’s plan. So, that was also a religiously based view. The court held in Loving that the state could not prohibit a marriage of a black man and a white woman or a white man and a black woman, but that of course didn’t prohibit clergy members who shared the religious view of that trial judge, from refusing to officiate at those weddings. That is a question of religious freedom.

Lithwick: Doug, let’s turn to what I think becomes the pivot, at least somehow the emotional pivot of oral argument, and this is still Mary Bonauto’s portion where Justice Kennedy gets into a colloquy with John Bursch. He’s Michigan Special Assistant Attorney General, ably defending Michigan’s position and Kennedy starts to use the word dignity and talk about the fact that in his view, marriage is fundamentally a dignity-conferring institution. Let’s listen for a minute to the back and forth between John Bursch and Anthony Kennedy.

John Bursch (audio): I want you to think about two couples that are identically situated. They’ve been married for five years and they each have a three-year-old child. One grows up believing that marriage is about keeping that couple bound to that child forever. The other couple believes that that marriage is more about their emotional commitment to each other and if that commitment fades, then they may not stay together. A reasonable voter, which is what we’re talking about here, could believe that there would be a different outcome if those two marriages were influenced by those two different belief systems. Ideas matter, your honors. And, you know, the out-of-wedlock-birthrate –

Anthony Kennedy (audio): But, that assumes that same-sex couples could not have the more noble purpose, and that’s the whole point. Same-sex couples say, of course we understand the nobility and the sacredness of the marriage, we know we can’t procreate, but we want the other attributes of it, in order to show that we, too, have a dignity that can be fulfilled.

Lithwick: Doug, I wonder if you think that this is a moment in which the Kennedy who is worried about millennia is also the Kennedy who is worried about dignity, with the understanding that—I think if Kennedy has a favorite word, it’s certainly in the top three. Dignity is one of those words. Did you feel the same way about that back and forth?

Hallward-Driemeier: I did. And, I think that the—the colloquy illustrated the extent to which the state was having trouble making an argument that accounts for the incredibly important dignitary interest that people have in their marriages. Mr. Bursch actually went so far as to say that marriage is not about conferring dignity on the married couples. And, I think Justice Kennedy rightly expressed extreme skepticism in that, because as is true from not just Justice Kennedy’s own writings, if you go back to Griswold and to Loving and to a case called Turner, which involved a state who tried to prohibit a prisoner from getting married, all of these decisions reflect an understanding that marriage has many aspects to it.

One of which is really, they say, intimate to the degree of being sacred. And, that is true. And, this notion of a ennoblement that marriage is and the states, in order to come up with an explanation of marriage that excludes gays and lesbians from it, has had to, you know, really draw back to such a cramped notion of marriage that it’s not consistent with how we really think about marriage, it’s not consistent with the state’s own laws about marriage, it certainly is not consistent with what the Supreme Court has said about marriage and why it’s fundamental.

And, perhaps most significantly as your question is indicated, it is absolutely contrary to what Justice Kennedy understands marriage to be.

Lithwick: And, Doug, just explain or summarize if you would for listeners, what Michigan says its chief interest in marriage is, because I think, you know, we’ve said—John Bursch took the position, this is not about emotional connection. What is it about, in Michigan’s view?

Hallward-Driemeier: Well, Michigan has taken the position that marriage is about reinforcing the bond between a child and his or her biological parents. And, why is that the state has defined that as its interest?

It’s because that is the only aspect of marriage that does not also equally apply to same-sex couples. They have had to retreat to the one aspect of marriage that gay and lesbian couples cannot equally participate in. And, I really, as I’ve been thinking about this, I think of this Edwin Markham poem, “He drew a circle and shut me out, heretic, rebel, a think to flout, but love and I had the wit to win. We drew a circle that brought him in.”

And, that’s what the state is doing, it’s drawing a circle and that circle is getting smaller and smaller and smaller, to right now, it’s like almost a dot, what they’re trying to define marriage as being only about the biological relationship with child and parent. And, we know because, we know it in our hearts, we know it in our own experience, we know it because the state laws reflect it, and certainly the Supreme Court has said it many, many times, that marriage is much more than that.

Lithwick: I’m sitting here slightly speechless, Doug, just because—first of all, no one’s ever recited poetry on Amicus before, but also because I think it’s really been on my mind as well, all week, as I sort of like, gritted my teeth that my husband doesn’t clean the drains out in the sink. You know, he always lets all the vegetables be at the bottom. That, it really is, in the end, about something much more than just bonding us to our kids. There’s something about what we agree to do and to be in this marriage that is really, really profound.

It doesn’t have words. I think in my head, it does have something to do with tolerating that they don’t clean the goo from the bottom of the sink. But, I agree with you. Your poem is a much more powerful articulation of that sentiment. I wonder if we can turn to your part of the argument for a minute. In one sense, when this case was—when we framed it in prior shows, we talked a lot about states’ rights Kennedy, you know, that Kennedy, for all his reverence and solicitude for dignity, he accords dignity to the states as well. And, that, your part of the argument was sort of about, in a deep sense, the dignity of states. Did it matter that Justice Kennedy talked almost not at all in the second hour of argument?

Hallward-Driemeier: Well, a favorable interpretation would be because we think maybe he’s going to rule for us on question one and question two becomes moot. So, that’s—my sincerest hope is that mine becomes the most important argument that was ever made that was never decided, because question one is decided in our favor and question two about recognizing existing marriages becomes moot.

You know, I think—there’s no question whether Justice Kennedy is paying close attention to these arguments. It’s clear that he is very sensitive to the federal structure of our constitution and the very critical role that states play in that, especially with respect to family law. But, I think one of the really important aspects of our argument was that this issue has existed for over two centuries now, about couples getting married in one state that might not have been able to get married in another state.

And, for more than two centuries and including—it goes back far beyond that, if we want to go, if we want to talk about millennia, it goes back to Roman times, this notion that a marriage that was valid, where celebrated, is valid everywhere. And, why is that? Well, the—I won’t call them ancient writers, but the treatise writers back in the 1800s said, well, it would be an abomination to think of a couple as being differently mated in different jurisdictions.

And, just think of all the problems that could arise. If you were married in one jurisdiction and then you went and traveled to another and the second state said, oh, you’re not married here, well, that would mean in a sense that that person could get remarried there. Now, that’s problematic, okay? And, so, the law has for centuries, if not longer, followed a rule that said, even if you could not have validly got married here, we will recognize the marriage that was validly celebrated elsewhere, to avoid all of those problems that otherwise arise.

It’s really, in this sense that the states here are the ones who are departing so dramatically from that tradition by saying, no, we’re not going to pay any heed to your marriages. And, one of the things that I pointed out in my argument was that, going back again to these anti-miscegenation laws, against interracial marriages, even something that was thought so fundamental as that at the time, they would not disregard these marriages categorically.

Now, they might think it was a crime for that couple to be living together within their state, but if one of the parties had already died and it was a question of how do we divide up the estate? Those states were willing to acknowledge that that couple had been married and therefore, the laws of how does property pass to a spouse would apply. These laws that we’re dealing with say that a marriage between a same-sex couple will not be recognized for any purpose.

And, that leads the state to really take absurd extremist positions such as, for one of our plaintiffs who was married and his husband died, they will not acknowledge the marriage or the husband’s name on the death certificate. And, you said earlier that Justice Kennedy is very, very concerned about, very attuned to dignity concerns. That is the ultimate indignity, to refuse to acknowledge, even on a death certificate, that this couple was married.

Lithwick: Doug, I want to thank you very, very much. I know this was a busy week for you. Doug Hallward-Driemeier of Ropes & Gray is one of the three lawyers who argued on behalf of the plaintiffs, in this week’s historic Obergefell v. Hodges. Doug, thank you for joining us this week on Amicus.

Hallward-Driemeier: Thank you, Dahlia for having me. I’m glad to be here.

Lithwick: And, that is it for this episode of Amicus. As always, we’re eager to hear your thoughts and we’re especially interested in what you’d like to hear on the show this summer, when the Supreme Court takes a break. Our email is That’s A-M-I-C-U-S at Hey, we’d also appreciate it if you could take a minute to help us spread the word about Amicus by leaving a short review of the show on our iTunes page. Just search Amicus in iTunes store, click on the ratings and reviews tab.

And, while you’re there, you might be interested in taking a look at some of our earlier shows, one of which explored the issues behind this week’s other monster case of the court, Glossip v. Gross, all about the constitutionality of lethal injection drugs. You can also find that episode, along with the rest of our archives at Thank you so much to the Virginia Foundation for the Humanities, where our show is taped. Our producer is Tony Field, our manager Joel Meyer and Andy Bowers is our executive producer. Amicus is part of the Panoply network. Check out our entire roster of podcasts at I’m Dahlia Lithwick and we will be with you soon for another edition of Amicus.