WASHINGTON (AP) – Setting the stage for a potentially historic ruling, the Supreme Court says it will decide whether same-sex couples nationwide have a right to marry under the Constitution.
The justices said Friday they will review an appellate ruling that upheld bans on same-sex unions in four states.
The case will be argued in April and a decision is expected by late June.
FILE – In this June 26, 2013, file photo, gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington. The justices might have to decide to jump in at their closed-door conference on Friday, Jan. 16, 2015, if they want to resolve the legal debate over gay marriage in the next few months. The justices would hear the case in April, the last month for oral arguments before the next term begins in October. (AP Photo/J. Scott Applewhite, File)
Kentucky, Michigan, Ohio and Tennessee are among the 14 states where gay and lesbian couples are not allowed to marry.
The number of states that permit same-sex marriage has nearly doubled in three months as a result of federal and state court rulings. The justices’ decision last October to turn away same-sex marriage appeals allowed some of those rulings to take effect. Florida last week became the 36th state to issue marriage licenses to same-sex couples.
The court is extending the time it usually allots for argument from an hour to two-and-a-half hours. The justices will consider two related questions. The first is whether the Constitution requires states to issue marriage licenses to same-sex couples. The other is whether states must recognize same-sex marriages performed elsewhere.
The appeals before the court come from gay and lesbian plaintiffs in Kentucky, Michigan, Ohio and Tennessee. The federal appeals court that oversees those four states upheld their same-sex marriage bans in November, reversing pro-gay rights rulings of federal judges in all four states.
Ten other states also prohibit such unions. In Arkansas, Mississippi, Missouri, South Dakota and Texas, judges have struck down anti-gay marriage laws, but they remain in effect pending appeals. In Missouri, same-sex couples can marry in St. Louis and Kansas City only.
Louisiana is the only other state that has seen its gay marriage ban upheld by a federal judge. There have been no rulings on lawsuits in Alabama, Georgia, Nebraska and North Dakota.
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.”
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 threeseparatepetitions 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 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.
FILE – In this July 31, 2014 file photo is Associate Justice Ruth Bader Ginsburg in her Supreme Court chambers in Washington. Ginsburg discusses the work of the court in an appearance Tuesday, Sept. 16, 2014 at the University of Minnesota Law School. (AP Photo/Cliff Owen, File) The Associated Press
People seeking clues about how soon the Supreme Court might weigh in on states’ gay marriage bans should pay close attention to the 6th Circuit Court of Appeals, Justice Ruth Bader Ginsburg told a Minnesota audience Tuesday.
Ginsburg said cases pending before the circuit covering Kentucky, Michigan, Ohio and Tennessee would probably play a role in the high court’s timing. She said “there will be some urgency” if that appeals court allows same-sex marriage bans to stand. Such a decision would run contrary to a legal trend favoring gay marriage and force the Supreme Court to step in sooner, she predicted.
She said if the appeals panel falls in line with other rulings there is “no need for us to rush.”
Ginsburg didn’t get into the merits of any particular case or any state’s gay marriage ban, but she marveled at the “remarkable” shift in public perception of same-sex marriage that she attributes to gays and lesbians being more open about their relationships. Same-sex couples can legally wed in 19 states and the District of Columbia. Bans that have been overturned in some other states continue to make their way through the courts.
“Having people close to us who say who they are — that made the attitude change in this country,” Ginsburg said at the University of Minnesota Law School.
The Supreme Court returns from a summer recess in early October. Ginsburg wasn’t the only justice on the lecture circuit Tuesday; Justice Clarence Thomas was addressing a gathering in Texas.
Thomas, one of the court’s conservatives, expressed his firm belief in the strict construction of the Constitution during his appearance at the University of Texas at Tyler. As a judge, Thomas said, he’s “not into creative writing,” the Tyler Morning Telegraph reported.
And Thomas said he’s motivated by the belief that if the country “is not perfect, it is perfectible.”
Fifteen months ago, the high court struck down a provision of the federal Defense of Marriage Act that denied a range of tax, health and veterans benefits to legally married gay couples. Rulings invalidating state gay marriage bans followed in quick succession.
Ginsburg spent 90 minutes before an audience of hundreds discussing her two decades on the Supreme Court as well as her days as an American Civil Liberties Union lawyer. In a question-and-answer period, she predicted that cases dealing with the environment and technology would make for watershed decisions in years to come.
Privacy of information carried on smartphones in the context of criminal searches could be particularly big, Ginsburg said. “You can have on that cellphone more than you can pack in a file cabinet,” she said.
The liberal justice said the court is the most collegial place she has worked as she fondly described her close relationship with conservative Justice Antonin Scalia. She made sure to plug a comic opera about the two of them — “Scalia/Ginsburg” — that will debut next year in Virginia.
And the 81-year-old Ginsburg elicited plenty of laughter by highlighting a Tumblr account about her called the “Notorious R.B.G.” and a never-realized dream job.
“If I had any talent God could give me, I would be a great diva,” she said.
Yesterday, on the heels of the Judge Richard Posner’s brilliant pro-marriage equality ruling out of the 7th Circuit Court of Appeals, attorneys general from 32 states — three out of every five states in the country — filed two separate briefs with the U.S. Supreme Court urging the justices to rule on same-sex marriage.
The AP reports:
Fifteen states that allow gay marriage, led by Massachusetts, filed a brief asking the justices to take up three cases from Virginia, Utah and Oklahoma and overturn bans. And 17 other states, led by Colorado, that have banned the practice asked the court to hear cases from Utah and Oklahoma to clear up a “morass” of lawsuits, but didn’t urge the court to rule one way or another.
Massachusetts Attorney General Martha Coakley wrote that the experience of her state — the first to legalize the freedom to marry — proves that marriage equality strengthens the institution of marriage and helps families. Signing on to Massachusetts’s brief were the marriage equality states of California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, New Mexico, New York, Oregon, Pennsylvania, Vermont, and Washington.
Colorado’s brief, which was joined by Alabama, Alaska, Arizona, Georgia, Idaho, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, West Virginia and Wisconsin, says that only the Supreme Court can resolve the question of marriage equality. It also claims, according to the AP, that “without a Supreme Court decision, states defending bans could be liable for huge legal bills from future lawsuits if they are overturned.”
Earlier today, the Justice Department released a report detailing the Obama administration’s broad implementation of the Supreme Court’s United States v. Windsor decision, which struck down key components of the Defense of Marriage Act (DOMA) last year. Under the leadership of President Obama and Attorney General Eric Holder, the breadth with which this administration has implemented the Windsor decision constitutes the single largest conferral of rights to LGBT people in history.
“President Obama’s advocacy on behalf of LGBT people is nothing less than historic,” said Human Rights Campaign (HRC) president Chad Griffin. “We are incredibly grateful to both the president and Attorney General Eric Holder for keeping their promise of fighting to wipe out anti-LGBT discrimination at the federal level. There is no question that the lives of LGBT people today are immeasurably better today than they were before this president took office.
“The administration’s sweeping interpretation and implementation of the Windsor decision has led to greatest conferral of equal rights, benefits and obligations to LGBT people in our nation’s history. In record time, Attorney General Holder has moved heaven and earth to guarantee equality, and the LGBT community could not ask for a better partner in progress.”
Today’s report also identifies that the administration is unable to extend some Social Security and Veterans benefits to married same-sex couples living in states that do not recognize their marriages. The Justice Department has determined that statutory references to “state of domicile” or similar terms require Congress to pass legislation to amend the statues to provide for a “state of celebration” standard.
Also included in the report was an announcement that the VA Acting Secretary will allow for same-sex couples to be buried together in a national cemetery. Furthermore, the Social Security administration will begin extending survivor benefits, lump sum death benefits and aged spouse benefits to same-sex couples if one partner is eligible to inherit from the other partner under state law. This would include couples with civil unions or domestic partnerships from states like Colorado, Nevada and Wisconsin.
Just prior to the release of the report, the Department of Labor issued a notice of proposed rulemaking which will permit same-sex couples to access leave under the Family Medical Leave Act (FMLA) regardless of state of residence. The Office of Personnel Management also announced its intent to extend family leave to all federal employees who are married to a same-sex spouse.
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.
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 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.”
