Same-sex marriage case in court: Attorney John Bursch

Oralandar Brand-Williams
The Detroit News

When attorney John Bursch enters the hallowed halls of the U.S. Supreme Court next week, he'll reach out and touch the foot of the 132-year-old statue of the late Chief Justice John Marshall.

It's something Bursch has done for good luck the previous eight times he's argued before the nine justices. And he hopes it helps this time, too, when he tries to convince them to keep in place Michigan's ban on same-sex marriage.

"One strength is just having been there before," the bow tie-wearing Grand Rapids attorney said. "I know the justices very well and they know me. I think that's helpful if you're walking into the court."

Bursch's colleagues and associates say, however, the advantage of being a veteran Supreme Court litigator go well beyond his familiarity. They say his forte for writing "compelling," award-winning briefs as well as his legal skills to expertly argue before the court will help him present his case well.

Dan Schweitzer, chief counsel for the National Association of Attorneys General Center for Supreme Court Advocacy, describes Bursch as an "impressive" lawyer with a history of "fortuitous" legal briefs that have landed him before the court in the nation's capital.

"I remember from his first appearance before the court that this is someone who just has adeptness on oral arguments," said Schweitzer in an interview from his Washington, D.C., office.

A math and music major, Bursch was drawn to the field of law after reading the Scott Turow novel "One L: The Turbulent True Story of a First Year at Harvard Law School."

Michigan's case began when Hazel Park residents April DeBoer and Jayne Rowse sued the state to be able to jointly adopt each other's children and to marry.

Bursch will present the oral arguments on behalf of the state of Michigan, defending the Michigan Marriage Amendment, the 11-year-old ban on same-sex marriage that voters approved in 2004.

At the heart of his arguments, to be made in 45 minutes, will be the question of who decides whether same-sex couples can be legally married in Michigan.

Setting precedence

"Marriage is one of those things where people can have different opinions and it has to be decided at the ballot box and not through the courts," Bursch said. "It's about who gets to decide not what should be decided."

Bursch said the historic arguments Tuesday are important because they could set precedence on the issue of gay marriage across the country since it is the first time a lower court, the 6th Circuit Court of Appeals, had a split decision on the question.

Bursch, a former solicitor general for Michigan, will be joined by current Michigan Solicitor General Aaron Lindstrom in arguments.

"We're really glad (the justices) decided to take the cases," Bursch said. "There's been a lot of confusion and anxiety over the years about who gets to decide (whether gay marriage should be legalized)."

Bursch and Lindstrom also argued against affirmative action for the state in its lawsuit against the University of Michigan admissions policies in 2013.

Bursch said he has practiced to prepare for Tuesday.

"It's truly difficult to make an oral argument especially before the current (Supreme) Court because there are eight very active justices and their questions (to attorneys) are in rapid fire. It really is more than the ultimate challenge, " Schweitzer said.

Bursch is an attorney who is "always very thoroughly prepared" for cases, said Dori Bernstein, the director of the Supreme Court Institute, which prepares attorneys through "mock arguments."

"He's very skilled," Bernstein said. "He has an excellent demeanor ... ."

Frequently before justices

Mary Bonauto, the attorney who will argue to have the state's ban overturned, said: "I look forward to meeting (John Bursch)."

Bonauto will also represent Kentucky on the marriage equality question in arguments. The justices will hear cases from four states — Michigan, Ohio, Kentucky and Tennessee — and decide two questions: Is a state obligated under the 14th Amendment to grant a marriage license between two people of the same sex? And is a state required to recognize a marriage between two people of the same sex when it was a marriage legally recognized and performed in another state?

Burch took a leave from his employer, Warner Norcross & Judd law firm, to take on the case. At $300 an hour for his work, Michigan Attorney General Bill Schuette says it is money well spent. "This is as close to (Tigers pitcher David) Price and a healthy (Justin) Verlander you're ever going to find," Schuette said, using a baseball analogy to describe Bursch and Lindstrom.

Bursch has appeared before the U.S. Supreme Court more frequently that most lawyers between March 2011 through the end of 2013. During that time, he appeared in 6 percent of all cases and won six and got "partial relief" on the other two.

He has appeared before the Michigan Supreme Court 15 times.

A Western Michigan University graduate, he received his law degree from the University of Minnesota. Born in Minnesota and raised in Grand Ledge, he is a three-time winner of the Distinguished Brief Award for advocacy in the Michigan Supreme Court. He was named by Michigan Lawyers Weekly as a "Leaders in the Law" in 2014.

"It's an honor to represent not only the state but also the people of the state," Bursch said. "I'm going to do my very best by them."

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State's legal team

Besides John Bursch and Aaron Lindstrom, the other attorneys on the legal team for the state of Michigan are Eric Restuccia, the deputy state solicitor general and Ann Sherman, assistant solicitor general for the state of Michigan.