Thursday, May 21, 2015

Grand Theft Bonauto?; or, John Bursch & the "dignity" problem

     In Ireland this Friday, May 22, people will have a democratic right to decide on same-sex marriage, with one of the present author’s clients, Heather Barwick, speaking in the Emerald Isle on behalf of traditional marriage. That right of the People to decide, is a right that that we in the States may soon not have. Which would be tragic, seeing all the ugliness that may ensue here: Americans feeling cheated out of their democratic birthright; “traditionalists” and “progressives” bitterly fighting and calling each other “bigots” or “oppressors”; possible open civil disobedience by same-sex-marriage opponents in the offing, with “the kingdom falling apart” and “Camelot in decay”, as in John Boorman’s Excalibur, starring the recently-deceased Nigel Terry (filmed in Ireland, by the way). And the April 28 Obergefell v. Hodges et al. oral argument in the Supreme Court, flubbed by the four respondent States, may have unjustly hastened the end to that democratic choice.

     Mary Bonauto, the petitioners’ counsel, may thus get to “steal” a win, a grand win, she needn’t have won. Her own performance was hardly flawless, though, starting with her intro, “The intimate and committed relationships of same-sex couples . . . . are the foundation of family life in our society.” (The “foundation”? Sans same-sex marriage, there’d be no family life in the USA?) And re Justice Alito’s question about two men and two women (all lawyers) entering a group marriage—riffing off a scenario the present author mentioned to the Court—, Bonauto answered in part, “If there’s a divorce from the second wife, does that mean the fourth wife has access to the child of the second wife?”
     The problem is that there is no “fourth wife”. If Tom Brady “deflated the football”, here Bonauto is overinflating it, doubling the number of wives in the scenario, producing unjustified horror. (No one is accusing of her of malice, but she should’ve been more accurate.)
     Bonauto’s finish, “It’s about the individual making the choice to marry and with whom to marry, or the government”, could apply to anyone: polygamists, first cousins, etc. Still, it made a nice sound bite. But did Michigan’s attorney John Bursch do any better? Or did his argument “go to hell”?

     Actually, what “went to hell” was the outburst after Bonauto, wherein a fellow refreshingly (per Scalia) screamed something like, "You'll all burn in Hell...Homosexuality is an abomination" and was promptly helped out of the Court. It may’ve been a bad omen for anyone following Bonauto.
     Before Bursch came on, though, our Solicitor General, Donald Verrilli, claimed that there were no problems for children of same-sex couples. Justice Scalia rejoined, “Well, I think some of the -- some of the briefs contradicted that.” (Scalia may’ve been referring to some of this author’s clients’ briefs—here, here, and here—, six children of same-sex couples, children who didn’t enjoy the experience.) So Verrilli may have been “inflating the football” like Bonauto did.

     However, there are those who deflate their own football. (This article will use many sports metaphors or similes. After all, the sports/politics nexus has been in the news lately, with Mitt Romney getting beaten by Evander Holyfield; the second time Romney has been beaten by a prominent black man, by the way.)  —John Bursch’s introductory words included, “And we’re asking you to affirm every individual’s fundamental liberty interest in deciding the meaning of marriage.” There is a fundamental right to vote, but calling it a “liberty interest” naturally invites the rhetorical rejoinder, “But what about same-sex couples’ liberty?” And indeed, Justice Sotomayor retorted, “So we’re not taking anybody’s liberty away.”

     When Justice Ginsburg—she of the SNL portrayal of her as dancing same-sex-marriage supporter, and soon to be played by Natalie Portman--; queried Bursch on how same-sex marriage hurt traditional marriage, all Bursch could say was the sentiment, frequently overquoted by same-sex-marriage opponents, that “it has to do with the societal understanding of what marriage means”. Sotomayor helpfully quipped, “But the problem is that even under a rational basis standard, do we accept a feeling?”
     Bursch could have said so much else (as will be explored in Part II of this essay), but he chose to lead with his chin in this prizefight. It got worse. (He is no doubt a fine person and superb lawyer, but April 28 was just not his day.)

     Where Bursch’s argument really went into negative overdrive was, in his own and Justice Kennedy’s words (complete with any typos from the "Official Transcript"),
     And what they are asking you to do is to take an institution, which was never intended to be dignitary bestowing, and make it dignitary bestowing. That’s their whole argument. And when you do that, tens of thousands of other children who don’t meet their definition will likewise be left out and suffer those exact same dignitary harms. ...
     JUSTICE KENNEDY: Just in -- just in fairness to you, I don't understand this not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage.
     MR. BURSCH: It's supposed to --
     JUSTICE KENNEDY: It’s dignity bestowing, and these parties say they want to have that -- that same ennoblement.
     MR. BURSCH: Sure.
     JUSTICE KENNEDY: Or am I missing your point?
     MR. BURSCH: I think you’re missing my point. ...
     Ouch. Be careful what you say to Justices! Is rudeness really necessary?  —More Bursch:
     You know, dignity may have grown up around marriage as a cultural thing, but the State has no interest in bestowing or taking away dignity from anyone . . . . [Really? Then why do soldiers get given medals? Note by the present author]
     JUSTICE KENNEDY: Well, I think many States would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties. I’m puzzled by that. But you have another point to make.
     MR. BURSCH: Well, the -- the main point there is -- is the State’s [sic] don't intend to bestow dignity, but if you turn it into a dignity bestowing institution, then other family structures and children who are excluded from their definition would suffer a dignitary harm. You know, so you can’t draw the line there.
     Actually, you can. You just say that though marriage is a dignity-bestowing institution, not everyone has to be admitted. E.g., let’s say Dad wants to marry his seven sons—not marrying the seven brothers to seven brides, as in a musical, but marrying them to himself. That octo-person arrangment doesn’t sound like it deserves the dignity of marriage.
     So, while Bursch’s point, that some other alternate family structures may not be well-served by the petitioners’ dignity arguments, is technically valid, he made the point in the worst way possible, or close: he sounds like he’s saying marriage itself has no dignity. That sounds like “crazy talk”, which is why Kennedy seems befuddled by Bursch.
     And not just befuddled, but maybe appalled. “Dignity” may be Kennedy’s favorite concept, so for Bursch to say marriage doesn’t give dignity, is like waving a red flag in front of a bull. Bursch was practically bashing his own head (and his supporters’ heads) into a brick wall at this point.
     The present author is not pleased to report this all, and hopes the written briefs weigh more than the (failed) oral argument, so that the States and democracy win; but that may not be in the cards.
     (A friend of the present author asked him, in all seriousness, if the States’ attorneys are being paid under the table to “take a dive” and lose the case. This author doesn’t believe so, but given their unfortunate performance, no one should be blamed for believing so.)

     And Bursch is wrong on the law as well, it would seem. American marriage is very much about ennoblement. In contradistinction with Blackstone, who said that in England marriage was really just a civil contract, Maynard v. Hill, 125 U.S. 190 (1888), notes, with sentimental and grandiose late-19th-Century flourish, that American
marriage . . . . is something more than a mere contract. . . . It is an institution in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. . . .
     . . . .
     . . . It is rather a social relation like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.
     . . . .
     . . . In every enlightened government it is preeminently the basis of civil institutions, and thus an object of the deepest public concern. In this light, marriage is more than a contract. It is not a mere matter of pecuniary consideration. It is a great public institution, giving character to our whole civil polity.
(citations and quotation marks omitted)
     So, American marriage has been a dignity-bestowing institution since the 19th Century. For eons. Bursch did his side no favors by forgetting this.

     Bursch also got wrong, on the law, “And I’m reluctant to bring that [abortion issues re negative liberties] up, but, you know, in Roe v. Wade and Casey, this Court says the government cannot interfere in that private choice. That’s a fundamental right.”
     No, it hasn’t been a fundamental right in 23 years at least. Planned Parenthood of Southeast Pennsylvania v. Casey made it explicit that instead of abortion being a fundamental right (with “strict scrutiny” against any government measures restricting it), there’s now only an “undue burden” test on government restrictions of abortion. This is well-known, and for Bursch to get this wrong is astounding. (He may have been under great stress, but still: re mighty Casey, Bursch struck out.)

     Bonauto then stepped back into the ring, with a conclusion including,
     I hear that Michigan loves adoption, and, in fact, Michigan has placed intensely vulnerable children with these petitioners who have nurtured them to a healthy childhood. Does Michigan deny the marriage because they didn't conceive those children together, when Michigan would let other adoptive parents who are a different-sex couple marry? No. Michigan is drawing a line because it does not approve of the adult relationship, no matter what the protestations they follow.
     “I hear Michigan loves adoption…” Ouuuch. Bonauto is confident enough to start taunting and “trash-talking” her opponent here, like she’s going into a victory windup.
     Her argument was logically imperfect. (E.g., adoption may not be an ideal role model as marriage is often taken to be, so that there are real differences between them.) But rhetorically, it comes off as a bit of a haymaker, maybe knocking Bursch out of the ring for good.

     Hence the title of this essay. This author is surprised someone hasn’t made a video game or GIF yet showing Bonauto whupping Bursch kung-fu style and stealing away a victory, in this Mother of all Cases, that he could maybe have had if he’d argued rationally and effectively. That video game (or GIF) could’ve been called… Grand Theft Bonauto or something.
     Like Floyd Mayweather in the recent fight with Manny Pacquiao, Bonauto made no really big tactical errors and pretty much danced away from any serious damage, as in her inaccurate “fourth wife” response to a question about polygamy, that she was lucky no Justice called her on. And like Pacquiao, Bursch didn’t really land many punches, though he got punched pretty good. (Though at least Pacquiao didn’t hit himself in the head the way that Bursch did on the “dignity” issue and elsewhere.) Or, he got “arm-barred”, if you want to see Bonauto as the Ronda Rousey of the Supreme Court Bar.
     —If the Bonauto-Bursch fight had been pay-per-view, like the Mayweather/Pacquiao fight…what a concept.   Whew.

     Or, putting it slightly more seriously: in these cases, we are dealing with human beings here. Bonauto savvily kept mentioning the human side, i.e., her clients and similarly-situated folks; while Bursch's presentation, somewhat like that of the ungraceful Ed Miliband (Labour) who recently lost to David Cameron (Conservative) in the British elections, did not come off as particularly human: whether wrongly asserting that marriage doesn’t give dignity, or forgetting to mention the real human stories of various people who wrote briefs supporting his side (same-sex couples’ dissatisfied children; sexually-flexible men in happy heterosexual relationships; former homosexuals), or stroppily telling Justice Kennedy, “I think you’re missing my point.” The last is especially ironic, since Bursch’s argument itself was, despite some adequate moments, largely one long “missed point”. In fact, almost a role model for how not to make an oral argument. And the whole Nation may have to suffer for this forever.

     Part II of this essay, within the next few days, will have more commentary on the Irish same-sex-marriage vote, and also include things that Bursch could have done to support his case instead of destroying it. (The Court opinion isn’t out yet, so the debate continues.) And lots of other informative fun, maybe even something re Alito’s errant take on Plato’s views of homosexuality. Peace out ‘til then.

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