WASHINGTON — It's been a question for years: Which lawyer will argue the decisive marriage equality case in front of the Supreme Court? On Tuesday, the lawyers announced their decision, for now, was not to decide.
Lawyers for the plaintiffs in the six cases out of four states before the Supreme Court asked the justices to split the April 28 arguments, which will include 90 minutes focused on whether states can ban same-sex couples from marrying and 60 minutes focused on whether states can refuse to recognize same-sex couples' marriages, between four lawyers.
The plaintiffs' lawyers have asked the court to split the marriage question between the Michigan and Kentucky teams and to split the marriage recognition question between the Ohio and Tennessee teams. The letter did not, however, announce who would be arguing in each spot.
What's more, those four as-of-yet unnamed lawyers support the request of Solicitor General Donald Verrilli Jr. to also argue in support of marriage equality — meaning a total of five lawyers, each with 15 minutes, likely will appear at the podium to present arguments in support of marriage and marriage recognition.
On the other side of the arguments, the situation is much more simple.
On the marriage question, the Michigan Attorney General's Office has announced that the state's former solicitor general, John Bursch, will be arguing in defense of state bans on same-sex couples' marriages. Joe Whalen, the associate solicitor general in the Tennessee Attorney General's Office, will argue in defense of the recognition bans.
As Dan Tierney, a spokesman with Ohio Attorney General Mike DeWine, told BuzzFeed News, "It was the Court's expressed strong preference that only one person argue in defense of each of the two questions."
The underlying skirmish among supporters of marriage equality about who will bring the case that will — they hope — be credited with bringing marriage rights to same-sex couples across the nation has been a point of contention since the Supreme Court struck down the Defense of Marriage Act in 2013 and declined to rule on the merits of the case same-sex couples had brought against California's Proposition 8.
With dozens of cases pending across the country since then, and with different cases moving at different speeds up through the legal system, it was anyone's guess which case would be the one.
After a false start when the Supreme Court denied review of several cases in October 2014, the court accepted cases for review out of Kentucky, Michigan, Ohio, and Tennessee in January. The Kentucky and Michigan cases directly address whether states can ban same-sex couples from marrying, while the Kentucky case also — along with the Ohio and Tennessee cases — address whether states can ban recognition of same-sex couples' marriages.
The Supreme Court, when it accepted the cases, announced that it would be hearing 45 minutes of arguments per side on the marriage question and 30 minutes per side on the recognition question. It did not, however, assign who — or even which cases' lawyers — would argue before the court.
The court had asked for parties to submit their proposals for oral arguments by Tuesday.
The states' oral argument proposal for the marriage cases:
The plaintiffs' oral argument proposal for the marriage cases:
