At Supreme Court, Kicking the Tires on a Same-Sex Marriage Case Fit for History

Jeff Zarrillo, left, and Paul Katami, center, challengers of California’s ban on same sex marriage, at the Supreme Court with their attorney, Theodore B. Olson, in June. Credit Jason Reed/Reuters

WASHINGTON — The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.

In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.

In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.

The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”

The battle is for a place in the history books. Still, the sniping among the lawyers was a little unseemly, said James A. Campbell, a lawyer with Alliance Defending Freedom, which is defending the bans on same-sex marriage in Oklahoma and Virginia.

Jeffrey Fisher in April. Mr. Fisher, a law professor at Stanford, won a unanimous ruling in June requiring the police to get warrants to search the cellphones of people they arrest. Credit Gary Cameron/Reuters

“As I would read their briefs,” Mr. Campbell said of his dueling adversaries, “I would write in the margin: ‘that’s an implicit dig at this case’ and ‘that’s a dig at that case.’ ”

Evan Wolfson, the president of Freedom to Marry and one of the architects of the political and legal push for same-sex marriage, said there would be plenty of glory to go around should his side prevail. A victory, after all, he said, would be the culmination of a joint effort that was decades in the making.

“Every attorney in the world, it seems, is now eager to be the one that stands before the court in the freedom to marry case, but what really counts is the compelling collective presentation we will all make, no matter which case it is,” Mr. Wolfson said.

The lawyers challenging the same-sex marriage bans are confident they will win in the Supreme Court, which is why they have all urged the justices to hear their cases even though they had won in the lower courts.

The justices will consider whether to hear one or more of the cases at their first private conference of the new term, on Sept. 29, and they may announce their choice or choices in the following weeks. If they do, they could hear arguments this winter and announce a decision by June.

The arguments for and against same-sex marriage are by now familiar to the justices, who considered but sidestepped them in a case from California last year.

Theodore B. Olson, a former United States solicitor general in the administration of George W. Bush, argued that case for the challengers of the California ban, and he is now one of the lawyers challenging Virginia’s ban. As before, he is joined by David Boies, his adversary in Bush v. Gore, the 2000 decision that delivered the presidency to Mr. Bush.

On the phone the other day, Mr. Olson listed the reasons to pick his case. It includes a class action, he said. It presents not only the issue of the right to marry but also that of whether states must recognize same-sex marriages performed elsewhere.

Virginia, he pointed out, was home not only to several of the giants who wrote the Constitution but also to Mildred and Richard Loving, who successfully challenged the state’s ban on interracial marriage in Loving v. Virginia in 1967.

“It’s pretty potent stuff,” he said of his case’s connection to another civil rights movement.

Mr. Olson was quick to add that the ultimate goal was victory, whatever the vehicle. “We have great respect for the lawyers in the other cases,” he said, “and we would be quite supportive of them if that’s what the justices want to do.”

A second set of challengers is also involved in the Virginia case. Their lead lawyer is Paul M. Smith, who argued Lawrence v. Texas, the 2003 decision that struck down laws making gay sex a crime. That team also includes lawyers from the American Civil Liberties Union and Lambda Legal.

Mr. Smith told the justices that “the collective experience of counsel” in the two Virginia challenges mattered, as their groups “have litigated every major gay rights case decided by this court” from 1996 on.

Independent observers said a second case, from Utah, is the leading candidate. “Maybe if they want to be neutral they’ll pick Utah just because they were first,” said Roberta A. Kaplan, who successfully argued last year’s challenge to a key provision of the federal Defense of Marriage Act.

The Utah case, Herbert v. Kitchen, No. 14-124, was the first to strike down a state marriage ban after Ms. Kaplan’s victory. It is also much less complicated than the one from Virginia, which features three separate petitions from government officials seeking review of the appeals court’s ruling. One of the petitions, from the state’s attorney general, seeks to have the ban overturned. The others, from court clerks, seek to have it upheld.

There are two sets of plaintiffs, too. Mr. Olson represents two gay couples. Mr. Smith represents a class of gay couples who seek to marry.

By contrast, lawyers in the Utah case told the court, their case has “just one set of plaintiffs and one set of respondents.”

But Mr. Olson’s brief, in Rainey v. Bostic, No. 14-153, said the complications in his case were a virtue, as “all sides of this important issue would be vigorously represented.” The class-action aspect of the case, he added, would mean “there is no risk that this case would become moot — due, for instance, to the unforeseen end of a couple’s relationship — during the pendency of this appeal.”

The lead lawyer in the Utah case is Peggy A. Tomsic of Salt Lake City, and her team includes Neal K. Katyal, a former acting United States solicitor general; Mary L. Bonauto, who argued the 2003 case that established same-sex marriage in Massachusetts; and lawyers for the National Center for Lesbian Rights.

“The obvious thing about the Utah case is that it is being defended by state officials,” said Shannon P. Minter, a lawyer with the lesbian rights center. “It’s a very clean vehicle.”

Still, he added, “we’re long past the point where it would matter which case or which lawyer.”

Ms. Bonauto agreed. “Our case is an appropriate case,” she said. “All of the cases are appropriate cases.”

The justices will also consider cases from Indiana, Oklahoma and Wisconsin. In the Oklahoma case, the challengers are represented by Jeffrey L. Fisher, a law professor at Stanford who won a unanimous ruling in June requiring the police to get warrants to search the cellphones of people they arrest.

Mr. Fisher devoted 11 of his brief’s 32 pages to showing that his case was the right choice — or at least that it should be in the mix.

His case, Mr. Fisher wrote, presented only the straightforward question of whether Oklahoma must allow same-sex marriages to be performed in the state. “Some of the plaintiffs from the Utah and Virginia cases, by contrast, raise another claim,” he wrote, that of whether states must recognize marriages performed elsewhere.

Mr. Fisher assured the justices that they would receive “full and focused briefing and argument” on the core issue if they picked his case, Smith v. Bishop, No. 14-136.

Mr. Olson drew the opposite conclusion from the same set of facts. Hearing the Virginia case, he told the justices, would “enable the court to resolve all aspects of the marriage-equality question in a single opinion without leaving lingering questions and uncertainty for lower courts, states and the American public.”

On this, at least, the lawyers in the Utah case agreed. “Piecemeal review risks that litigation will drag on for years,” they wrote.

 

 

Lawyers Olson and Boies want Virginia as same-sex marriage test case

The legal team that overturned California’s ban on same-sex marriage is targeting Virginia to launch another challenge aimed at convincing the Supreme Court that gays and lesbians have a constitutional right to marry no matter where they live.

The American Foundation for Equal Rights — with its attention-getting political odd couple of conservative Republican lawyer Theodore Olson and liberal Democrat David Boies — will announce Monday it is joining a lawsuit against what the lawyers called Virginia’s “draconian” laws prohibiting same-sex marriages, the recognition of such marriages performed where they are legal, and civil unions.

Bill O’Leary/The Washington Post) - Attorneys Theodore Olson, left, and David Boies depart the Supreme Court after no decision in the Defense of Marriage Act case on June 24.

Bill O’Leary/The Washington Post) – Attorneys Theodore Olson, left, and David Boies depart the Supreme Court after no decision in the Defense of Marriage Act case on June 24.

It is one of dozens of lawsuits filed across the nation by same-sex marriage activists who say they feel emboldened by the Supreme Court’s decisions in June that overturned the federal Defense of Marriage Act (DOMA) that forbade recognition of same-sex marriages and separately allowed such unions to resume in California.

Despite the victories, the justices stopped short of finding that the Constitution requires that gays and lesbians be allowed to marry and left the matter, for now, to the states.

There are dozens of lawsuits filed in state and federal courts in 18 states, according to the Human Rights Campaign, and on Friday, a state judge in New Jersey ruled same-sex marriages must be allowed there. Gov. Chris Christie (R) is appealing.

But the ultimate goal is the recognition of a constitutional right, such as when the Supreme Court struck down Virginia’s ban on interracial marriages in the 1967 Loving v. Virginia decision.

The addition of Olson and Boies to a case in Norfolk willprobably bring more attention to the challenges to Virginia’s ban on same-sex marriages. The state’s voters in 2006 amended the state constitution to ban such marriages, as well as civil unions, and to forbid recognition of unions performed elsewhere. Thirteen states, including Maryland, plus the District of Columbia, allow gay marriage.

Olson said AFER was invited to join the case by attorneys for the plaintiffs, Norfolk residents Timothy Bostic and Tony London, whose marriage application was turned down, and Carol Schall and Mary Townley, who have a 15-year-old daughter and whose marriage in California is not recognized by the commonwealth.

Virginia is an “attractive target,” said Olson, who lives in the state, because its rejection of same-sex marriage and civil unions is so complete.

“The more unfairly people are being treated, the more obvious it is that it’s unconstitutional,” Olson said.

Olson and Boies, who were opposing counsel in the 2000 Supreme Court showdown in Bush v. Gore, received enormous attention when they teamed up to challenge California’s Proposition 8, which was passed by voters in 2008 to stop the same-sex marriages that the state’s high court had authorized.

The result was a full trial before U.S. District Judge Vaughn R. Walker, who ruled that the California ban violated the Constitution’s guarantee of equal protection.

The case, Hollingsworth v. Perry, reached the Supreme Court last term. But the justices did not rule on the constitutional question, instead finding that those who were appealing Walker’s ruling did not have the legal standing to bring the challenge. Same-sex marriages resumed in the state almost immediately.

Olson said he did not anticipate a trial in the Norfolk proceedings before U.S. District Judge Arenda Wright Allen, but the record from California “is a great foundation for us which we can convey into the federal courts in Virginia.”

This Virginia case is also attractive because it is moving quickly, at the state’s request. A second challenge, filed in the Western District of Virginia, is on a slower track.

Although Virginia’s constitutional amendment was easily approved, recent polling shows a majority of residents favor legalizing same-sex marriage. But Republicans who control the state’s political leadership and legislature are opposed, and removing the constitutional amendment would be difficult.

The constitution can be amended by voters only after a constitutional convention or if a proposed amendment is passed twice by the General Assembly, with an election occurring between the two votes.

While the Perry decision was important to Californians, the court’s 5-to-4 DOMA ruling in U.S. v. Windsor provides same-sex marriage supporters with the most hope. Even dissenting Justice Antonin Scalia said that while the decision purported to support state rights, it provided a road map for challenges to state bans.

The Norfolk complaint makes extensive use of Justice Anthony M. Kennedy’s majority opinion that DOMA “places same-sex couples in an untenable position” and “humiliates” the children raised by such couples.

The lawsuit compares the Virginia ban with Kennedy’s finding that “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”

The Windsor decision “created a sense of urgency,” said Dale Carpenter, a University of Minnesota law professor who has studied the issue, especially because polling did not indicate the kind of public backlash as other court rulings that granted gay rights.

Since the decisions, Justice Ruth Bader Ginsburg has officiated at a same-sex marriage, and last week former president George H.W. Bush was one of the witnesses for the marriage of a lesbian couple in Maine.

Sarah Warbelow, state legislative director of the Human Rights Campaign, said: “We had an opportunity to see where the Supreme Court was standing on the issue, and I think attorneys are increasingly confident that the court is ready to take up the whole nine yards.”

Suits have been filed across the country, many by the American Civil Liberties Union, and another leader in the race back to the Supreme Court might come from Pennsylvania. It has no constitutional prohibition and the Democratic attorney general has said she thinks the state law banning same-sex marriage is unconstitutional.

But some supporters of same-sex marriage fear the suits are coming too fast. The justices turned down the chance to find a constitutional right to marry only months ago, and Kennedy’s opinion in Windsor also contained his caution that “history and tradition” give states the right to define marriage.

After giving the victories, the slim Supreme Court majority might favor letting the political process, rather than the judicial, take the lead.

Olson is unmoved by that theory.

“I’m not going to get into the justices and what they each said and what Justice Scalia said,” Olson said. “Given what was said in DOMA [decision] and given the record we made in California and given what we’re going to establish in Virginia, we’re going to be able to persuade a majority of the court that this is the right thing.”

Source: The Washington Post, January 24, 2014