As I wrote previously,there were some bald-face lies in the Michigan attorney general's brief to the Supreme Court in the DeBoer v Snyder case. (This was the Michigan instance of the four marriage equality cases argued before the Supreme Court yesterday). Michigan's official, documented plea in the marriage case was filed by Republican state Attorney General Bill Shuette. Shuette is a long-term right-wing culture warrior; he opposition to same-sex marriage in Michigan is a big reason that these cases reached the Supreme Court in the first place.
But then things got dramatic. This attorney giving (anti-equality) oral arguments on behalf of the states parroted Schuette's lie. And Justice Breyer caught him doing it. And it was so bad that even Justice Scalia mocked it. And Justice Breyer promised to dig up the truth. Repeatedly.
As I wrote before oral arguments took place, The First Big Lie in Bill Shuette's brief to the Supreme Court was a claim that in the Windsor case, the Court had affirmed the permanence of marriage inequality. Here is the paragraph from Schuette's brief. (Italics original; bolding added)
3. There is no due-process right to any particular marriage definition. And it would be illogical to hold that Michigan's marriage definition violates due process when its opposite-sex character provides Michigan's primary interest in having a marriage institution at all. As this Court observed in Windsor, the "limitation of lawful marriage to heterosexual couples...for centuries has been deemed both necessary and fundamental." 113 S. Ct. at 2689[...]
Here's what the Court's majority actually said, describing the backstory and premise of the
Windsor case. (Majority ruling excerpted from
Windsor, pp. 13-14)
III
When at first Windsor and Spyer longed to marry, neither New York nor any other State granted them that right. After waiting some years, in 2007 they traveled to
Ontario to be married there. It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex
might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.
Schuette changed one word, took a quote out of context, and tried to make it sound like the Court had re-affirmed exclusion of same-sex couples from marriage. They hadn't. I listened to the entire oral argument on Question One as soon as the audio was released, wondering whether the pro-equality lawyers would call Michigan out on this lie. They didn't. But at the very end of his oral argument, states' attorney John Bursch repeated Shuette's lie, unprompted. And was promptly busted by Justice Breyer:
JUSTICE BREYER: I'll certainly go back and read Windsor again, And I'll certainly go and read Glucksberg again. I do recall the cases, at least generally. And I don't believe there's anything in those cases that says the basic liberty or right to be married is a right that extends only to opposite-sex couples. Those were really issues in the case, as they are here, so I'm surprised if this court actually wrote that. But if it did write that, and if you can immediately call that page to mind, I'll doubly look at it. I just doubt it's there, but I'll look at it.
JOHN BURSCH: I apologize for not having the page cite, but you will find...
JUSTICE BREYER: That's quite all right. I'll read the whole opinion.
MR BURSCH: Then you will find it in Windsor, that the court majority said it's the limitation of marriage to opposite-sex couples that has always been thought fundamental.
JUSTICE BREYER: ...is the limitation of marriage...
MR BURSCH: Yeah.
JUSTICE BREYER: Okay.
MR BURSCH: So what we're talking about here is having to....
[crosstalk at 01:26:50]
JUSTICE BREYER: How could a limitation be... the right, the fundamental right has to be a right to marry. And you said it's the limitation?
JUSTICE SCALIA: Did Justice Breyer join that opinion that said that?
MR BURSCH: I believe he did.
JUSTICE SCALIA: My Lord.
JUSTICE BREYER: Sometimes, you know, context matters. I'm surpised we have this case in front of us, I mean, if it's been so clearly decided...
Oral arguments on “Question 1”, 01:26:00
http://www.c-span.org/...
So the last argument from the anti-equality states was a lie. And Justice Breyer busted them for it on the spot. And Scalia made fun of it.
Remember, this is part of Question One, whether the Fourteenth Amendment requires that States permit same-sex couples to marry. If the states lose on Question One, then they also lose on Question Two: whether they have to recognize marriages performed in other states. So the states' attorney (and former Michigan solicitor general) closed his oral argument on Question One by lying to the Court about their own precedent. And he prompted got caught.
Not a great day for the anti-equality forces.