Same-sex marriage cases wind their way to Supreme Court as political climate changes

Reporter September 25, 2011

Consider this bit of braggadocio about the advances of gay rights:

More than two-thirds of Americans say they would vote for their party’s “well-qualified gay candidate for president.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006. View Archive

The first openly gay male federal judge was just confirmed by an overwhelming majority in the Senate, and President Obama has nominated four other gay candidates for the bench.

California requires public school textbooks to include the historical contributions of lesbian, gay, bisexual and transgendered Americans; New York lawmakers defied the Catholic Conference to legalize same-sex marriage; Congress allowed homosexuals to serve openly in the military.

Gay rights groups “have gained more political ground in less time than just about any other interest group in American political history,” a document states.

It’s not a fund-raising appeal from the Human Rights Campaign. It is from the legal brief filed on behalf of the House of Representatives in support of the Defense of Marriage Act (DOMA), which withholds federal recognition of same-sex marriages performed in the states that allow them.

The point was that gays are not a politically powerless group singled out for discrimination and thus in need of heightened protection by the courts.

The DOMA case is part of the legal wrangling that has slowed what once looked like a relatively timely showdown in the Supreme Court over same-sex marriage.

Gay and Lesbian Advocates and Defenders (GLAD), the group that has spearheaded legal challenges to DOMA, does not foresee any decision by the justices until 2013.

And the celebrated effort to recognize a constitutional right to same-sex marriage — led by the political odd couple of Democratic stalwart David Boies and former George W. Bush solicitor general Theodore Olson — is caught in a tangle of judicial procedures.

(It has also literally spawned a sideshow: Last week, the American Foundation for Equal Rights, which is behind the lawsuit, staged a Broadway play based on the trial’s transcript; actor John Lithgow portrayed Olson.)

U.S. District Judge R. Vaughn Walker in August 2010 struck California’s 2008 voter-approved Proposition 8 — which amended the state constitution to limit marriage to a man and a woman — as violating the due process and equal protections of the U.S. Constitution.

The appeal is now bouncing back and forth between the California Supreme Court and the U.S. Court of Appeals for the 9th Circuit in San Francisco.

It’s anyone’s guess how long the legal appeals are going to take and which cases are likely to reach the Supreme Court first.

Some put their money on the DOMA cases, which would offer the court a sort of intermediate step to consider same-sex marriage.

U.S. District Judge Joseph Tauro in 2010 ruled unconstitutional the part of DOMA that defined marriage “as a legal union exclusively between one man and one woman.” That decision is on appeal to the U.S. Court of Appeals for the 1st Circuit.

And the Obama administration decided earlier this year it would no longer defend the law when couples in Connecticut, Vermont and New Hampshire filed suit.

House Republicans hired former solicitor general Paul Clement to represent the view that “any effort to redefine the institution of marriage as something other than the union of one man and one woman” is better left to the political branches of government.

That view was — gently and respectfully — debated this past weekend at a panel sponsored by the College of William and Mary Law School’s Institute of Bill of Rights Law.

Judge J. Harvie Wilkinson III, the well-regarded conservative on the U.S. Court of Appeals for the 4th Circuit, called the question “wrenchingly hard.” He noted the contributions of gay Americans and said it was striking that the movement’s aims in the courts is to “partake in the most traditional” of American rights: to serve in the military and to get married.

But he said the Constitution protects “not only individual liberty but democratic liberty.”

Legal challenges seeking same-sex marriage rights have led to what he said were regrettable decisions by states to amend their constitutions to forbid them.

He noted the rapidly changing political environment, and said there is no reason to believe gays could not achieve their goals politically, rather than by judicial fiat.

He was answered by Paul M. Smith, a celebrated Supreme Court practitioner who happens to be gay. The DOMA cases, he said, place “states’ right and gay rights on the same side.”

Striking the law would not require other states to sanction same-sex marriages, he said, but only require federal recognition of legal same-sex marriages performed in those states that allow it.

Courts are essential, Smith said. Brown v. Board of Education served as a catalyst for the civil rights movement; the 2004 decision of the Supreme Judicial Court of Massachusetts served the same function for the same-sex marriage movement.

Politics are changing, Smith agreed with Wilkinson. But that doesn’t mean gay Americans should wait, he said, or “stop asking for the Equal Protection Clause to be applied to you.”

Read more on PostPolitics.com

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