“This is the case. This is the one.”
Maureen Holland, a civil rights attorney from Memphis and one of the lawyers currently preparing briefs for the upcoming Supreme Court argument on same-sex marriage rights, said this would be the case to finally make marriage for same-sex couples a federal guarantee.
On Jan. 16, the Supreme Court granted the four states from the 6th Circuit Court of Appeals — Tennessee, Kentucky, Ohio and Michigan — a writ of certiorari stating the court has accepted the case as well as outlining the specific questions the court wants answered in an oral argument that will take place in late April.
Lawyers from all four states have been asked to address whether the 14th Amendment requires states to issue marriage licenses to same-sex couples and recognize marriages from other states.
The Supreme Court chose to consolidate the cases from all four states, an action that Nashville civil rights attorney Abby Rubenfeld said she thinks will limit the number of attorneys allowed to argue in front of the Supreme Court to one per question.
While the Tennessee team of attorneys will address both questions posed by the court in a brief that will be filed at the end of February, Holland said the Tennessee cases focus exclusively on marriage recognition and interstate travel and their brief will reflect that.
“Our case is a marriage recognition case,” Holland said. “The parties have been asked to brief both arguments, but certainly we will weigh in on the facts and arguments of our own case, which focuses on marriage recognition.”
Joel Kramer, the faculty head of VolOUT and the chair for the Chancellor’s Commission for LGBT People, said he thinks addressing the question of interstate travel and the transfer of rights across state lines is one of particular importance on a national scale.
“We need it settled on the national level, because it is kind of ridiculous that your rights may change whether or not you drive over an arbitrary imaginary line on a map,” Kramer said.
Along with the two attorneys from the 6th Circuit, the U.S. solicitor general will be arguing both questions on behalf of the 6th Circuit cases.
For Rubenfeld, this fact speaks to the positive and hopeful attitude the 6th Circuit lawyers have regarding the potential outcome of the case.
“Here we are, in 2015, and the United States Government is going to file a brief on our side in this case, and the solicitor general is going to ask for argument time to argue on our behalf,” Rubenfeld said. “That’s an extraordinary development, and as an attorney and as a lesbian, it’s just the most exciting thing in the world.”
This fact, combined with the 36 states that already recognize same-sex marriage and the overwhelming public support for the 6th Circuit lawyers including a public statement from the president, give the team a strong sense of confidence and hope, Rubenfeld said.
“We feel very positive that not only are we going and the Supreme Court is going to address this hugely important issue, but that the United States of America is on our side.”
For Christie Thiessen, president of VolOUT and senior in communication studies, deciding civil rights issues on a national level eliminates any jurisdiction problems that might arise when dealing with states that don’t recognize or refuse to enforce existing legislation.
“I think there will always be people who will be against it,” she said. “A nationwide ruling is going to make it legitimate and enforceable for everyone.”
Aside from the more particular issues associated with travel, Rubenfeld said the brief will also discuss how the state’s current laws are not only discriminatory but legally unjustifiable.
“The distinction that the states have made that they’re going to exclude same-sex couples only from state-sanctioned marriage is discrimination,” Rubenfeld said. “The states have not offered any reasons that can meet the lowest level of constitutional scrutiny, which is rational basis, much less the higher level of scrutiny which we think should be applied.”
The 6th Circuit lawyers will be arguing their cases in front of the court headed by Chief Justice John G. Roberts, which has recently taken a conservative stance on several controversial cases including Burwell v. Hobby Lobby.
While the arguments are intended to address all nine justices, Holland and Rubenfeld said they have to pay particular attention to several of the justices they think may be more critical than the others.
Rubenfeld said analyzing the written opinions of several of the justices has helped her team frame the arguments they will present.
“On the big victories we’ve had in the last five years, the decisions have been 5-4 and Justice Kennedy is the swing vote, and he wrote the majority opinion so the principles we’re arguing in this case flow from the opinions that he wrote in those cases,” Rubenfeld said.
One of the arguments based on these opinions centers around the potential effects marriage discrimination can have on the children of same sex couples. This argument applies to the Tennessee plaintiffs Val Tanco and Sophy Jesty in particular, who have a daughter named Emilia.
