I am Mary Bonauto, a lawyer (and MacArthur Fellow) who successfully argued the U.S. Supreme Court case establishing the freedom to marry for same-sex couples nationwide. AMA!

The biggest opposition to the ruling seems to be that the Supreme Court has no right to decide something that doesn't seem to be mentioned explicitly in the Constitution, something that the states should decide. The dissenting opinions of the justices were particular about that.

How do you feel about those opinions?

MB The Supreme Court and courts in general have to interpret and apply laws written by legislatures as well as the state and federal constitutions. Courts decide many controversies that “are not specifically mentioned in the constitution.” Think cell phones, earlier marriage cases, drug sniffing dogs and so on. Our system of government is that the federal constitution is supreme. When a state or federal law contravenes constitutional principles, it is the job of the courts to say so. The Supreme Court is the final arbiter on the US Constitution. It is the law of the land and can only be changed by a federal constitutional amendment. This takes approval of 2/3 of each chamber and 3/ 4 of the states.

Many people across the states are citing religious liberty as a reason for not granting marriages to same sex couples, even after this ruling. What do you see as the next step? Do you believe that it'll take laws made by Congress etc. for it to be fully sorted out?

MB No it doesnt take an act of Congress. One – it depends on context. People who work for the government have to do the work of the government. That means an individual employee can’t pick and choose who gets services based on their personal beliefs. If you can’t do your job and serve everyone, you should be re-assigned or leave. This nation respects freedom of religion. And it also respects the rule of law. Religion should not be inserted into the job of a government clerk. And if it is inserted, then where does it end. Should people be denied driver’s licenses or fishing licenses or hunting licenses because of a clerk’s beliefs about gender roles, or the sanctity of all life?

Two questions:

(1) The majority declined to explain what scrutiny analysis it used to strike down the marriage laws. How do you think future litigants should approach other discriminatory statutes in the absence of a clear scrutiny analysis?

(2) What percentage of your argument preparation would you say focused on Justice Kennedy in particular? 50%? 90%? Did you assume that he would be the deciding vote?

MB The Supreme Court majority reiterated that marriage is a fundamental right and that gay couples can also exercise that right. Since marriage is a fundamental right, the Court applied strict scrutiny to the States’ justifications just as it has in other marriage cases. In future cases addressing equal protection claims, litigants are free to press the argument that rules/laws that distinguish among persons based on sexual orientation should get heightened judicial scrutiny. All 4 factors (although only 2 are key) were acknowledged in the opinion. (1) The Supreme Court discussed the history of discrimination against gay people. (2) It acknowledged some of the many ways gay people contribute to society, including as soldiers and parents. (3) It twice referred to sexual orientation as an immutable trait, which we understand to mean it is a deeply held characteristic and a part of a person’s identity they shouldn’t be forced to change to avoid discrimination. (4) As to political power, it described gay people’s situation as one that evolved from “outlaw” to “outcast” in the last 13 years. I assume federal and state courts alike are going to grapple with this question. It’s hard to look at the Obergefell opinion and say rational basis review applies to laws treating gay and non-gay people differently.

The pundits often predict with pretty good reliability how each justice is going to go in cases like this, before the case is even presented to the court. Do you feel like most of the justices had already made their decision before the case even starts?

MB I know the pundits predicted the outcome. That said, I was cautioned by a number of Supreme Court advocates to take no vote for granted (and I wouldn't have anyway). Justice Kennedy, for example, believes deeply in the value of the state political process to rectify errors, and that was one of the bases on which the Court of Appeals had upheld the bans. On a related note, one of the things about oral argument is how you feel like you are coming into the middle of an intense and ongoing conversation but without knowing what people said before you got into the room.

As a law student interested in litigation, how do you go about prepping for a big case? Is there any difference when you know you'll be arguing in front of the supreme Court, or do you just put in more time/effort to ensure your argument is as good as it can be? Thanks!

MB In terms of getting to a win, the merits are key. The briefs are crucial, and we had great briefs from the parties themselves as well as dozens of amici experts in any area of life or law that mattered. As to oral argument, I worked closely with a team of people to make sure we could answer just about anything. I had several moot courts, and even one with a # of conservatives. That said, you can't anticipate absolutely everything, as with Justice Alito's questions about the ancient Greeks.

What do you think about Justice Robert's dissent for the case?

MB I was disappointed and I wasn't the only person to feel that way. But it shouldn't have been a surprise since he forecast his views in the Windsor dissent from 2013. I was astonished to see Obergefell compared to the Dred Scott case where the Supreme Court refused to recognize the humanity of black Americans.

History

• You reach back to Baker v. Nelson in describing the arc of history leading up to the Obergefell decision. It seems as a society, we have difficulty remembering the history of the struggle: we forget how early it begins, and how many reversals there were, and imagine the ultimate just conclusion was foregone. What can we do to ensure we remember the history of the struggle accurately?
• Roberts fabricated history to buttress his argument in his Obergefell dissent. This seems to be a common tactic amongst politicians generally, but also very common in the legal profession and judiciary (and is especially prevalent in Indian Land law). What can we do about this tendency in the judiciary to either select dubious information to provide a pretext for a decision or outright fabricate facts?
• Institutional memory is key to the success of any movement. How can we ensure advocacy organizations retain the lessons learned leading up to this success? How can we ensure those lessons are spread to other allied organizations?

MB I agree an understanding of history is essential to excellent advocacy. Some people are writing books now and perhaps that will help. :) And you are right that I used Baker at argument as a way of showing that the Court and nation had been grappling with marriage in the legal realm for over 40 years. This bolstered our contention that it was time for the court to settle this issue for the nation.

Beautiful work, Mary. How would you respond to someone like Ted Cruz who claims that marriage is a state matter, and that it's unconstitutional for the Supreme Court to make this ruling? If you didn't see Cruz's interview with Colbert on this subject, here's a link. Thanks!

MB Ted Cruz should know better. He clerked on the Supreme Court. The promises of "due process of law" and "equal protection" apply to state and local governments. When their laws cross the line, it is the duty of the Supreme Court to say so. States do regulate marriage in the first instance, not the Congress. But state laws have to comply with the Constitution. That's why the Supreme Court has invalidated state laws restricting people from marrying based on their race, based on being behind in child support payments, and based on being incarcerated. This is no different. Plus, equal protection requires that people be treated alike. We are past the point where there is any justification for treating gay people differently from everyone else.

Justice Ginsburg noted that the Equal Protection rationale was far more compelling in Obergefell (link). Do you think Kennedy's arguments will have problematic practical implications for the long-term consequences of the decision? Or do you think that, ultimately, this decision will be unchallenged and will serve as a useful precedent regardless?

MB We had a great win on both liberty and equality in Obergefell. The Court says the marriage bans "abridge central precepts of equality." It talks about how the marriage exclusion "has the effect of teaching that gays and lesbians are unequal in important respects." And as I mentioned in another answer, all of the factors for heightened scrutiny for gay people are in the opinion. Equality principles are also laced through the liberty/fundamental rights discussion. I would caution people not to under-read the opinion. It has plenty for us to work with going forward.

Thank you for your contributions to dignity and equality and also for progressing human kind.

How do you feel about folks who choose not to uphold this ruling at a local level? What do you think appropriate action against such a person is for choosing not to uphold the law and the oath that was probably taken when that person came into that position?

MB Part of what makes difficult the situation in Rowan County Kentucky, where the Clerk refuses to issue marriages licenses to anyone now that the Supreme Court has ruled same-sex couples are eligible for marriage licensing, is that she is elected and can’t be removed from office. I understand that a judge ordered that other people in her office issue licenses. New reports from the ACLU indicate that she has instructed staff to alter the licenses issued so that they contain no reference to the county and are initialed rather than signed. This raises a question of the validity of the licenses. It will take some time for this to get sorted out. The bottom line is that the overwhelming majority of clerks in states across the country have had no problem doing their job as government officials – even clerks who agree with her in their hearts.

Hey, thanks for posting and generally doing really good work. Will you tell us a little about your early career? What did you do for the first five or so years out of law school?

MB I was eager to get busy using my law degree to help people. I went into private practice in Maine and did lots of volunteer work, including on HIV issues. By the time Gay & Lesbian Advocates & Defenders (GLAD of Boston) hired me in 1990, I had done a fair amount of discrimination work. And my work at GLAD for the last 25 years has touched on nearly every aspect of life for LGBT people.

My husband and I thank you. I actually just met Doug Hallward-Driemeier this last weekend, so it's interesting to hear about this case from yet another incredible perspective. Thanks for the AMA!

Question: how closely did you work with the other oral arguers? I'm assuming you all worked as a team, but I'd be interested to hear about the logistics of such a large group of important lawyers come together for something like this.

Thanks!

MB We had a big team of lawyers overall and it was great. Each State had its own team of lawyers for the briefing I was working with terrific attorneys in Michigan. But once we were set for argument on Question 1 (the marriage question I argued) and Question 2 (the recognition of existing marriages, argued by Doug Hallward-Driemeier from Ropes & Gray), each of the teams had people who were part of larger conversations about the oral arguments. Doug and I worked to support each other and avoid any traps that would hurt the other’s case. It was super helpful to me to have an experienced Supreme Court advocate like him to talk to. Lots of people with expertise helped us out.

Strategy & Tactics

• There were several legal and political reversals before the Obergefell decision (Marriage Bans in '04, Prop 8 in '08...). How did the movement respond to these reversals and what lessons can the movement draw from those responses as we move forward? What were some of the more and less effective responses?
• Personally, how did you and your colleagues process these reversals? What strategies did you see as effective in ensuring institutions and their members were able to endure and effectively respond to these setbacks?
• For those who are new to the struggle, what advice can you give for helping us to understand how to think strategically? As outsiders to major institutions, how can we learn to respond effectively to legal, political, and social institutions?
• Normative shifts were critical to victory in Lawrence, Windsor and Obergefell. As a lawyer, looking at those organizations more principally concerned with changing attitudes, what tactics or tools do you believe most helped cause the normative shifts that facilitated legal victories?
• Other activists have comented that they believed we would win non-discrimination protections long before marriage. Why do you believe the opposite happened? Going forward, how do you think we can leverage our marriage victory to win on non-discrimination and further protections to ensure full LGBTQ equality & dignity?

MB. Wow there are lots of great questions here. Let me jump to the last one about leveraging Obergefell. That case was the 4th Supreme Court decision rejecting laws that treat gay people differently from others. There was Romer in 1996 - you can't deem gay people strangers to the law and disqualify them alone from seeking protection under anti-discrimination laws. There was Lawrence in 2003 finding that gay people have the same liberty right to engage in consensual intimacy as anyone else, and also reversing an unpleasant case called Bowers v. Hardwick (1986). Then Windsor in 2013 said that the federal government can't treat married gay people differently from how it treats other married people. And now we have Obergefell saying that both liberty and equality protect gay people in the right to marry and receive equal treatment from the government. It should be clear there is no case for ongoing discrimination by the public and private sectors. Now we need to convert that into political wins on non-discrimination nationally and at the state level. And we need to stay vigilant in court too.

How did being awarded the MacArthur fellowship change your career? Are you now able to be more selective in the cases you choose to work on?

MB It hasn't changed because I am still an employee at GLAD (25 years and counting) and I work with a savvy and dedicated legal team about what issues and cases to bring forward. I am incredibly lucky to have been able to devote nearly my whole legal career to justice for LGBTQ people at GLAD. If anything, the MacArthur fellowship allows me to keep going! We have a new generation of issues to tackle!

What do you think the next big Supreme Court case will involve? The freedom to marry whomever you want (thanks to you!) has just happened, and that was everyone's "big" issue. What topic will take its place?

MB Hard to say. It could be a claim from an individual asserting that his or her personal beliefs allow him/her to act contrary to law, particularly to non-discrimination laws. It could be the reach of "sex" discrimination laws. Right now, sex discrimination includes sex and gender, and there are cases applying this to address discrimination against transgender people and gay people.

This is a great step towards equality, but we're far from an egalitarian society. When i read marriage equality passed the supreme court, the article added that [only] 60% of US citizens were welcoming of marriage equality.

What do you think is the next major battle for lgbt equality as a whole? What are you personally planning to work on next?

MB There are many. And remember that we have to fight for and to retain "equal dignity." No one hands it to you on a silver platter. That said, there are a host of issues, including youth issues, where discrimination can have effects that last a life time, including bullying that leads to dropping out or rejecting parents who force their kids onto the street. I also think it's well past time for better (and age appropriate) sex education for all young people. It is unconscionalbe that over 1100 young men a month get HIV, mostly young men of color between the ages of 13-24. We can do better. We are also focused on ensuring people have the same freedoms and opportunities in our society generally, regardless of sexual orientation, gender, gender identity or HIV status.