Supreme Court justices deserve to have a good laugh now and then.
Michigan, Ohio, Kentucky, and Tennessee are all defending their legislative bans on gay marriage in briefs before the U. S. Supreme Court. Only one of their legal teams came up with—-or had the guts to include—the novel argument contained in the Bluegrass State’s brief, which explains why a ban on gay marriage does not “discriminate on the basis of sexual orientation”:
Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law.
This is in the amusing category of arguments that make technical sense in legal terms—well yes, come to think of it, if you look at it that way, you’ve defined discrimination right out of the case!— but no sense whatever in the real world. Gays can’t marry their intended life partner but heterosexuals can; that’s obviously unequal treatment and constitutes discrimination. The defense deceitfully pretends that the whole reason for the emotional controversy doesn’t exist: “Love? What’s that? We know nothing of this thing you call love!”
These come up all the time when legal teams are brainstorming which theories to pursue in an appellate brief, and are virtually always discarded after some general amusement and admiration for the Clintonian who devised it. There is nothing unethical about including a dubious argument along with better ones in a brief, even a Supreme Court brief: consider the position that carried the day in the Obamacare case, when Chief Justice Roberts adopted a rationale for the individual mandate that the Obama Administration had repeatedly rejected and denied. The problem is that such an off-the-wall argument is risky:
1. It pulls time, attention and consideration from more promising arguments.
2. It makes the client look foolish or unserious to the public.
3. Worse, it might make the client look foolish to the justices.
4. Some justice might react to it as an insult to his or her intelligence.
More than all of that, however,the argument is not going to work. Can you imagine what the reaction would be if the Supreme Court endorsed gay marriage bans relying on that logic? The argument is a non-starter, so including it in the brief sends a loud and clear message that no appellate lawyer ever wants a judge to hear:
“We got nothin’.”