Attorneys for plaintiffs from four states made their oral arguments before the U.S. Supreme Court on Tuesday in Obergefell v. Hodges, a case that could strike down same-sex marriage bans in all 50 states.
Among the plaintiffs are couples from Kentucky’s Bourke v. Beshear case, which seeks a ruling that Kentucky’s 2003 ban on same-sex marriages and the recognition of such marriages performed in other states is unconstitutional.
Joe Dunman, one of the attorneys for the Kentucky plaintiffs, tells Insider Louisville that their legal team is “generally feeling optimistic” with how the oral arguments proceeded, adding that “nothing came out of left field.”
While hesitant to read the tea leaves on how certain swing justices will rule based on their comments and questions, Dunman noted that conservative Chief Justice John Roberts gave them reason to be optimistic by questioning whether bans on same-sex marriage appear to be discriminatory on the basis of sex, as some legal observers predicted he would.
“If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t,” said Chief Justice Roberts. “And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
Dunman added that the questions put forward by the most important swing vote — Justice Anthony Kennedy, who previously wrote a forceful decision in striking down the Defense of Marriage Act — gave some of their legal team another reason to be optimistic. On the second question brought before the court — whether states must recognize marriages performed in other states — Kennedy did not appear interested, leading many legal observers to think he has made up his mind on the first question that would make the second moot: whether same-sex marriages can be banned in any state.
Dunman said that while Justice Stephen Breyer — a liberal justice expected to side with marriage equality — was brusk with the plaintiffs’ attorney in his questioning, he’s known for wanting to hear specific answers and tease out all sides of an argument.
Most of the plaintiffs and their attorneys will return to Kentucky on Wednesday, and the Supreme Court will have a final decision on the case — and the future of same-sex marriage rights in Kentucky, if not all of America — in June.
Editor’s Note: Joe Dunman is a freelance contributor at Insider Louisville. You can see his past IL columns here.