A Gay-Marriage Lawsuit Dares to Make Its Case
By Michael A. Lindenberger
The legal case that gay-rights activists feared to see is about to get under way in a federal courtroom in San Francisco. For the next several weeks, plaintiffs will argue that the U.S. Constitution forbids states from restricting marriage to one man and one woman. The case has brought together some of the most powerful appellate attorneys in America but has divided gay-rights lawyers and legal scholars who fear that even if successful, the case could set the issue on a collision course with a less-than-sympathetic U.S. Supreme Court.
The high court has issued powerfully pro-gay-rights decisions at key points in the past 20 years — including striking down criminal statutes forbidding gay sex six years ago. But it has never voiced a word of enthusiasm for gay marriage. That has left scholars and longtime legal veterans of the gay-rights movement fearing disaster for gay marriage, should the issue be decided by the conservative-leaning Justices. "When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one," Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, told TIME.
"The stakes are extremely high," adds law professor Samuel Marcosson of the University of Louisville, author of Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. "I think the plaintiffs are (unfortunately) very likely to lose — at least if the case makes it all the way to the Supreme Court — and set a precedent that didn't need to be, and shouldn't have been, set. The case was premature and ill-advised."
The trial begins Jan. 11 in a 17th-floor courtroom in downtown San Francisco, and is expected to last two to three weeks. U.S. District Judge Vaughn Walker convenes a hearing Wednesday over whether to take the rare step of allowing the trial to be broadcast, despite strong objections by defenders of Prop 8 — the 2008 voter initiative that ended gay marriage in California. Televised or not, the trial will be the first in federal court to answer the question of whether the U.S. Constitution forbids states like California from restricting marriage to opposite-sex couples.
If the plaintiffs prevail all the way to the Supreme Court, a decade of election-night wins by groups opposed to gay marriage will be reversed. Voters in more than 30 states have rejected gay marriage. That's what Californians did when they supported Prop 8 in late 2008, reversing a landmark state Supreme Court ruling that not only made gay marriage legal there, but gave gays and lesbians the same broad-based protection against discrimination that racial minorities enjoy.
The attorneys who brought the case, led by former U.S. Solicitor General Theodore Olson and famed litigator David Boies, are confident their timing is right. "We consulted and researched in depth," Olson wrote in an e-mail to TIME. "We concluded that we had/have a reasonable chance of success. Our clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event — without the resources or experience that we can assemble. The State Attorney General has now conceded the unconstitutionality of Prop 8. Finally, no one urging us not to proceed could or would say when would be a good time to bring this case."
So what, exactly, will the two parties be trying to prove next week in order to win?
To begin with, Olson and Boies will argue that Prop 8 denies gays the fundamental right to marry, which the California Supreme Court held to be guaranteed. They will have to beat arguments from the other side that point out that no state prevents gays from marrying — like everyone else, they just have to choose a partner of the opposite sex. And they will have to convince Walker that civil unions, which remain legal in California, are not an adequate substitute.
Next the question would be whether banning gay marriage achieves a legitimate government interest — and defenders of Prop 8 included more than a dozen such goals in a preview of their case filed last month. They argue that allowing same-sex marriage would weaken society and erode support for traditional marriage. They also say that it could lead to greater acceptability, and eventually legal recognition, of polygamy and marginalize the role of biological parents.
Some state courts have found that laws forbidding gay marriage achieve no legitimate interest at all. And others have ruled that while same-sex marriage bans may be rational, they can't survive a higher scrutiny that courts reserve for special classes of citizens — such as racial minorities and, on a more limited basis, women. No federal appeals court has so far held that gays and lesbians as a class are entitled to the special protection that requires heightened scrutiny of laws that discriminate on the basis of race or religion, for example. That may sound like a fine legal distinction, but it is one that matters. For instance, laws that deny a fundamental right to a group based on race are subject to the highest level of scrutiny, and almost always fail a constitutional test. But the same law, if applied to a group without such constitutional protection, can usually survive, like laws that prevent felons from voting.
Both sides have announced plans to call experts from top universities around the world to testify about whether gays are politically powerless and a handful of other specific tests that form the basis of the law governing claims under the due-process and equal-protection claims of the U.S. Constitution.
"Many people might be surprised to know that key issues about the legal status of gay people remain undecided in federal law," Jennifer Pizer, director of the National Marriage Project for Lambda Legal, told TIME. "Do all people have the same right to marry regardless of sexual orientation? ... Should sexual-orientation discrimination be considered a form of sex or gender discrimination? Judge Walker may decide some or all of these questions, and the Ninth Circuit may decide them differently. Whatever happens is likely to have great significance."
Defenders of Prop 8 say that laws reserving marriage for heterosexual couples don't discriminate against gays — instead they say they simply emphasize the meaning that the word marriage has had throughout history, a meaning they say wasn't seriously questioned until the past 10 years. "Save for a few brief months between the California Supreme Court's decision ... and the adoption of Proposition 8, California has from its inception always limited marriage to the union of a man and a woman," wrote Charles Cooper, who served in the Reagan Administration's Justice Department with Olson, in his trial brief Dec. 7. "Indeed, until this decade, every State, nation and civilized society in every period of history had always limited marriage to opposite-sex relationships ... Contrary to Plaintiffs' contentions, the traditional definition of marriage does not reflect animus against gays and lesbians — in California or anywhere else."
Pizer says groups like hers had argued against testing these issues now in federal court, but have since helped with trial preparation. "We very much hope that Ted [Olson] is right that he has the votes to prevail against Prop 8, whether or not new constitutional ground is broken and regardless of which appellate court has the final word in the [San Francisco] case. And we've been doing everything we can to help the trial team prepare, as we're all passionately committed to victory both in this case and in the longer-term, national struggle."
No matter what happens, though, the issue of gay marriage won't be decided for good, no matter how far up the line this case goes. Gay marriage is legal in five states, and no decision by the U.S. high court would preclude other states from expanding those ranks. "It is definitely true that the case (even if unsuccessful) would not sound the death knell for same-sex marriage," Marcosson says. "States are permitted to do things that they are not required to do by the federal Constitution."
But for now the attention will be on San Francisco, where Olson and Boies are rolling the constitutional dice. Olson told TIME he's ready to go. "On more than one occasion I've been told that I had no chance to win a case," he says. "While one doesn't ignore these scholarly prognostications, I've found that they can often be wrong."
You can sign a petition asking Judge Walker to televise the Prop 8 trial here.