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Editor's note: KSL Newsradio's Amanda Dickson, a host of "Utah's Morning News with Brian and Amanda," was in the courtroom during the historic arguments on marriage Tuesday before the Supreme Court. Here is her behind-the-scenes look at this noteworthy day.WASHINGTON, D.C. — Adults do not respond well to shushing. They behave as if it applies to someone else and go right on talking.
Even in the chamber of the Supreme Court of the United States.
I sat for an hour waiting for the hearing to begin in the case of Obergefell v. Hodges, the case evaluating the constitutionality of laws that define marriage as between a man and a woman. It is the case some have called the Roe v. Wade of our day.
For the entirety of that hour, the woman to my left, who I couldn’t help but overhear had clerked for Justice Clarence Thomas, spoke with the woman to her left, who had been a colleague or law school classmate, or possibly both. Even the eighth “Quiet, please!” did not deter them.
I spent the hour looking around the courtroom, seemingly the only one in awe of my surroundings, and therefore captivated by the marble carvings on the ceiling, the pillars that circled the room reminding me of the famous front of the building itself, the full-length maroon curtains that are nearly the length of the 44-foot ceilings, and the ominous clock hanging above the chief justice’s chair.
A sea of gray and charcoal suits, the uniform of attorneys, filled the courtroom, with one exception. A woman four rows in front of me, where the parties and their counsel were seated, wore a bright magenta jacket. She continued to stand up and survey the courtroom every few minutes. At first I thought she was looking for someone, but after the 10th or 11th time, I realized she wanted to be seen.
I want to hear an answer to a question you've been asked several times. Marriage has been between a man and a woman for thousands of years, and suddenly you want nine people outside the ballot box to require states that don't want to do it to change marriage to include gay people. Why cannot those states at least wait and see whether in fact doing so is or is not harmful to marriage?
–Justice Stephen Breyer
Of course she did. She was the well-known civil rights attorney Gloria Allred, who seemed to be announcing that she was available for consultation following the hearing, should anyone have need.
At last a loud buzz sounded, and without direction (I was expecting an “all rise”), we rose. The justices filed in. They sit according to seniority with the chief justice in the middle and the least senior on the ends. Even the seating of guests in the courtroom is based on seniority of the justice who approved their attendance.
This rarefied air is filled with tradition, but also, perhaps surprisingly, camaraderie. Before arguments began, I saw many people hugging, seemingly after being separated for a time. I imagined that some of these plaintiffs had met on prior occasions and were only now getting reacquainted. I saw lawyers smiling – imagine that – and giving thumbs up.
That was before the questioning began.
From the first day of law school, a rookie law student worries about freezing before a court. Any court. But the Supreme Court? This must truly be the ultimate legal fear. With so much on the line and so many months, sometimes years, of preparation, to be in that moment and have your mind or soul or whatever you want to call it fail you? It would almost be too much to bear.
There were many captivating moments during the 2 ½ hours of argument. But two powerful moments stand out.
The first was near the beginning, and it may have an impact on the outcome of the case. Justice Samuel Alito told the attorney for the petitioners, Mary Bonauto, that he couldn’t get past the word millennia. Marriage has been between a man and a woman for millennia. A minute later, Justice Stephen Breyer jumps on her and demands:
“I want to hear an answer to a question you’ve been asked several times. Marriage has been between a man and a woman for thousands of years, and suddenly you want nine people outside the ballot box to require states that don’t want to do it to change marriage to include gay people. Why cannot those states at least wait and see whether in fact doing so is or is not harmful to marriage?”
I could feel the plaintiffs in front of me tighten, their hopes slipping away. It almost seemed like Bonauto shrunk. She stumbled, bringing up the 14th Amendment, but it felt like an apology.
I couldn’t help but think of Martin Luther King and his answer to President Johnson about why he would not wait for the Voting Rights Act until it was politically expedient for the president. From my comfortable armchair quarterback position, I pictured Bonauto rising up instead of shrinking, and saying in full voice: “Yes, Justice Breyer and Justice Alito. That is exactly what I am asking. I should think a millennia is plenty long to wait. The people behind me, their families, their children who are present today, have waited long enough to be treated with the same dignity as other citizens. It is about time. And I am asking you because you are uniquely entrusted with the job of protecting the rights of the minority under the Constitution.”
But the moment was gone.
As it was an hour later when Joseph Whalen argued on behalf of the states on the recognition question: Should states be required to recognize same-sex marriages performed in other states?
My heart went out to Mr. Whalen. I actually felt my body begin to sweat for the torture he endured. If I had thought the justices were hard on the petitioner, they were equally if not more demanding of this final attorney. Justice Antonin Scalia asked, “So the state of New York can only recognize marriages performed under the laws of the state of New York.”
“Yes,” Mr. Whalen said. Wrong answer.
Earlier in the argument, a sympathetic justice might have jumped in to bail out counsel who found himself adrift, but this time the bench piled on.
“What case would you cite in support of that proposition?” Chief Justice John Roberts asked from atop of his glasses.
“Give me a case,” demanded Justice Breyer, “that says the state of New York only has to recognize marriages performed in New York.”
Whalen stood there. “I’m not sure I understood the question.” Translation: “I want my Mommy.”
I kept sweating.
I imagined him pausing and admitting with full candor, “I misunderstood the hypothetical, but we’re not dealing with hypotheticals. We’re dealing with real states. Michigan, Kentucky, Ohio and Tennessee come before you today seeking confirmation of the authority to do what they have always done, define domestic relations within their borders.
"States have compelling interests in the well-being of marriages and families, not only for husbands and wives, but for the children, for the neighborhoods, schools, communities and all of the people the family unit ultimately affects. The definition of the family unit is not a conceptual act for the states. It is a concrete one, with concrete consequences. The states are interested in the well-being of all of their citizens, but not all legal vehicles, such as marriage, are available to all citizens. This is not discrimination. This is discernment with a larger public interest at stake.”
Of course, he would never have been given the time to offer that long of a statement before being interrupted. One of the surprising aspects of the argument was how often the justices interrupted each of the lawyers. It was nearly constant. Occasionally the justices talked on top of each other, in such cases deferring to the more senior who wanted to question.
The only person who interrupted a justice was the man who was arrested the day after for standing up and shouting at the courtroom, “You’ll all burn in hell!"
Other speech followed, but that’s all I remember before he was escorted out of the courtroom. Justice Scalia quipped, “Well, that was refreshing,” to nervous laughter all around. The chief justice asked the solicitor general if he wanted to take a break before he went on with his argument. At first, Attorney General Donald Verrilli thought he would, but then said, “Actually, if the court is ready.”
“We’re ready.”
“If it please the court …”
