When a same sex couple turned to Mary L. Bonauto about 20 years ago for legal help to get married, the lawyer declined to take the case.
“Her sense was that we weren’t quite ready for that yet,” said Gary Buseck, the legal director of Gay & Lesbian Advocates & Defenders and a longtime friend and colleague of Bonauto. “Mary’s thought was that there were a number of legal building blocks yet to be put in place before such a claim should be brought.”
Bonauto, who has worked as GLAD’s civil rights project director since 1990, spent the following years putting those building blocks in place. And on April 28, she’ll argue before the Supreme Court that same-sex marriage should be legalized across the nation.
Regardless of the decision that comes down from the Court, the case will be historic and several lawyers were in the mix to make the pro-gay marriage argument. It will all come down to Bonauto and Doug Hallward-Driemeier, a lawyer who has never argued a gay rights case but is considered an expert on the current Court.
“Mary and Doug truly are a dream team,” said Shannon Minter, the legal director of the National Center for Lesbian Rights, who was closely involved in deciding who would argue the case.
Former Acting Solicitor General Neal Katyal, who has represented same-sex couples, said the combination of the two lawyers will provide a good mix for the justices.
“With Mary, they are getting someone who represents not just the history, but the conscience, of this issue,” he said. Meanwhile, Hallward-Driemeier’s established track record before the Court, combined with an analytic approach makes him an “even-keeled honest advocate,” Katyal said.
Bonauto, 53, lives in Maine with her spouse, Jennifer Wriggins, and their two children. She has never appeared before the Supreme Court, but has worked on some of the biggest gay marriage cases at the lower court level.
“I feel like I have been preparing for an argument like this for well over a decade, and I’m looking forward to it,” she said in a conference call with reporters this week.
In 2003, she was the lead counsel in Goodridge v. Department of Public Health, which made Massachusetts the first state where same-sex couples could legally marry. Pictures at the time show Bonauto being led through a crowd with a police escort at Boston City Hall on her way to help the lead plaintiffs, Julie and Hillary Goodridge, get their license after the court victory.
“The whole time our case was going on, it was all about allowing people who love each other to be able to express that love, get married and protect their families, ” Goodridge said.
There was a quick backlash. In the year following the ruling, 11 states pushed through constitutional amendments to ban same-sex couples from marrying, according to the group Freedom to Marry, which supports same-sex marriage.
Bonauto and her team developed a strategy to combine litigation, public education and legislative initiatives to target the issue on a state-by-state basis. GLAD also challenged a federal law, the Defense of Marriage Act (DOMA), that denied federal benefits to legally married same-sex couples.
Bonauto was lead counsel in the first appeals court victory against DOMA – Gill v. Office of Personnel Management – and the case went barreling toward the Supreme Court. But the Court ultimately took up a different challenge to DOMA, leaving Bonauto in an unfamiliar place when a section of the law was struck down in 2013: on the sidelines.
This time around, Bonauto will be front and center. There are two questions before the Court in the gay marriage case and she’ll argue the biggest one, which looks at whether states have the authority to ban such unions.
Her opponent will be John J. Bursch, Michigan’s former solicitor general, who will argue on behalf of the states.
Bursch is no stranger to the Supreme Court – Tuesday’s argument will mark his ninth appearance. He is perhaps best known for a big win in 2014 when the Court upheld a Michigan constitutional amendment that banned race conscious admissions policies at public universities.
“This case is not about how to define marriage, that’s a debate that will continue,” he said in an interview. “It’s about who decides. Is it the people through the democratic process where this issue has always been decided, or is it the courts?”
Bursch, 42, and his wife, have five children. He worked as solicitor general from February 2011 to December 2013, and then left for private practice. He will argue the case with the title of Michigan’s Special Assistant Attorney General.
Dori Bernstein, director of the Supreme Court Institute at Georgetown University Law Center, worked with him when he participated in the Institute’s moot court program for Supreme Court advocates. She has seen some of the top appellate lawyers in the country prepare for argument and believes Bursch’s prior experience before the Court, coupled with his skill, demeanor, and thorough preparation, will prove invaluable.
“The Justices realize pretty early in an argument when an advocate doesn’t understand what he is being asked,” she said. “John understands exactly what they are asking him and knows how to respond to their concerns,” she said.
Bursch sees his role in part as addressing the concerns of the justices.
“If someone has concerns about your side, ” he said his goal is to assuage those concerns. But if it looks like a justice wants to vote in his favor he tries to “give them the tools they need.”
Arguments will then turn to the second question before the Court: whether states have to recognize marriages performed out of state. Hallward-Driemeier will argue that question for those seeking to overturn state marriage bans.
A partner at Ropes & Gray LLP in Washington, Hallward-Driemeier, has been married to his wife, Mary, for 19 years. He said that in the end, he sees the case as about family.
“We have three boys, and I have no idea what their sexual orientation will be, but I want them very much to have the same opportunity to find happiness in marriage that I have had,” he said in an interview.
A Rhodes scholar who attended Harvard Law, Hallward-Driemeier, 48, said he was inspired in law school by Justice Thurgood Marshall, who as a young lawyer changed the civil rights landscape and “helped to make our country a better place and helped it to live up to its stated ideals.”
While many lower courts have considered whether states can ban gay marriage, far fewer have ruled on whether states must recognize the lawful marriages of same-sex couples performed out of state. The question comes to the Court because Tennessee, Ohio and Kentucky refused to recognize the marriages of some of the plaintiffs.
“They have compelling stories,” Hallward-Driemeier said “and conveying to the Court what it means to have one’s marriage, one’s family, disregarded or even nullified as a legal matter, is something that should speak very loudly to the justices, many of whom are themselves married.”
Some advocates for gay marriage fear that the second question might provide an off-ramp to justices who may not be ready to make a nationwide ruling. They hope Hallward-Driemeier might be able to shore up votes.
He currently leads the Supreme Court practice at Ropes & Gray. But, critically, he worked as an assistant to the solicitor general, the office charged with arguing the government’s position before the Court, between 2004 and 2009. Although he has never argued a gay marriage case, he has appeared before the justices 15 times and has filed more than 150 briefs. The experience, he said, taught him to craft his arguments in a way that will resonate with the justices.
Deanne E. Maynard, who worked with him at the solicitor general’s office, said he’s developed the ability to get his point across succinctly and quickly, because the Roberts Court is known to be a “hot bench” with questions often coming with rapid-fire speed.
“Doug has developed a credibility with the Court,” she said, “and he’s going to take this as he does all of his cases, extremely seriously.”
His opponent will be Tennessee’s associate solicitor general, Joseph F. Whalen, who declined multiple interview requests.
A native of Massachusetts and a 1985 graduate of Boston University School of Law, Whalen has worked in some capacity in the Tennessee attorney general’s office since 1999 where he handled hundreds of briefs and appellate arguments in state appellate courts.
Paul G. Summers, who served as Tennessee’s attorney general, hired Whalen and considers him not only a good appellate advocate, but a good legal writer. Summers said he made one appearance before the Supreme Court in 2002 and Whalen “shepherded me through the process. “
“He sat by my side as co-counsel, and he did the heavy lifting on the brief that I argued,” Summers recalled in an interview. “I can tell you that he could have done just as good a job or maybe a better job than I could. He knew the case inside and out. “