By Dr. Ken Broda-Bahm:
The Supreme Court recently heard oral arguments on the question of marriage equality, and specifically whether state bans on same sex marriage are unconstitutional, and whether marriages that are legal in one state need to be recognized in another. As is typical, the focus is on Justice Kennedy as the traditional swing vote, and true to form, Justice Kennedy gave both sides something to ponder. For marriage equality opponents there was, "This definition [of marriage as between a man and a woman] has been with us for millennia. And it's very difficult for the Court to say, 'oh, we know better.'" Then, a bit later, for marriage equality proponents, there was a key moment after John Bursch, the Special Assistant Attorney General for Michigan, argued that the purpose of marriage was simply to regulate procreation and not to bestow dignity on anyone in particular. "I don't understand this as not dignity-bestowing," Kennedy quickly piped in, "I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage...I think many states would be surprised, with reference to traditional marriages, that they are not enhancing the dignity of both the parties. I'm puzzled by that." That contrast fed the speculation on what Kennedy will do when the decisions come down in late June.
But it is also wise to not read too much into the questions, and to remember that, when questioning, judges are often doing more than just seeking information or just sharing their views. Dealing with judges and many others in law means getting past the assumption that the only purpose of a question is to get an answer. Sometimes it is, but often there are a variety of other purposes. A judge's questioning strategy is definitely front and center in U.S. Supreme Court oral arguments, but an ability to diagnose and adapt to questions applies in other legal settings, including witness cross examination and depositions, as well. In this post, I will draw from the Court's oral arguments on the constitutionality of state bans on same sex marriage (the Obergefell cases) in order to separate and discuss the various question purposes on display.