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Oblique_facade_3,_US_Supreme_CourtSeeking a Same-Sex Marriage Case Fit for History

By ADAM LIPTAKSEPT. 22, 2014

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.”

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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.

“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, next Monday, 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.

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