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Same-sex marriage set for big day in federal court

By Karl Vick
Washington Post Staff Writer
Monday, January 11, 2010; A03

LOS ANGELES -- After a run of setbacks at the state level, gay rights advocates will take the campaign for same-sex marriage into a federal courtroom on Monday, starting down a treacherous avenue that ends at a U.S. Supreme Court dominated by conservatives.

"It's a high-stakes poker move, no doubt about that," said Jane Schacter, a professor of constitutional law at Stanford University. "I think the calculation for a long time has been that it's hard to count five votes in favor of same-sex marriage on the current Supreme Court."

Two couples are asking Chief U.S. District Judge Vaughn R. Walker to rule that same-sex marriage is a right embedded in the Constitution, and that it was violated last year when California voters passed a ballot measure confining matrimony to members of the opposite sex.

In the San Francisco courtroom, however, the spotlight is not on the gay male or lesbian pair, but on the odd couple representing both: Theodore B. Olson, a conservative Republican, and David Boies, a famed litigator and Democrat. The two are close friends who were on opposite sides in Bush v. Gore, the Supreme Court case that decided the 2000 presidential election, but they found common ground pressing for constitutional recognition of same-sex marriage.

"From a conservative standpoint, people who wish to enter into the institution of marriage wish to enter into something that is the building block of our society, and that is itself a conservative value," said Olson, who served as solicitor general under President George W. Bush.

Said Boies: "This team really sends a message that this isn't a question of anything to do with political ideology."

Defenders of the California ban agree, noting that support for marriage as it has been defined for centuries runs across the spectrum. Barack Obama handily carried California in 2008, the same year that African American and Latino voters went heavily for Proposition 8, the ballot measure that passed with a 52 percent majority and undid a state Supreme Court decision that permitted 18,000 same-sex unions.

"We don't see it as a civil rights issue," said Austin R. Nimocks, an attorney for the Alliance Defense Fund, which represents the sponsors of Proposition 8. "Marriage is about bringing the two different elements of society -- men and women -- together in one unit of form that produces and raises the next generation.

"If it gets to the Supreme Court, this case, yes, we're confident that marriage will be upheld," he said, "in addition to the citizens' right to vote on it."

Walker, appointed by President George H.W. Bush, is planning a full-on trial. Each side will present experts and first-person testimony, starting with plaintiffs Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo, according to Boies.

In an unusual move, the proceedings will be uploaded at regular intervals on YouTube, the judge ruled last week.

"He's really laying the basis to make a very full record supporting whatever decision he later makes," Schacter said.

Opponents frame the case as a challenge to the people's right to make law. In every one of the 31 state ballots where the issue has appeared, voters have defeated it, most recently in Maine. In the five states that permit such unions -- the District will join them this year -- the change came by legislation or court decision.

And judicial restraint rallies the high court's conservatives.

"The proper role of judges is a major issue in this case, and whether it is for the courts to discover and create new rights, or for the people to decide through the democratic process," said Andrew Pugno, who with Kenneth Starr successfully defended a challenge to Proposition 8 in the California high court.

In the federal case, Pugno is teamed with Charles Cooper, who served with Olson in the Justice Department under President Ronald Reagan. The lawyers cite a 1972 Supreme Court decision not to hear a Minnesota same-sex marriage case "for want of a substantial federal question."

Olson and Boies answer with a string of high-court decisions mentioning marriage as a right. "The Supreme Court has said it is a part of the right to liberty, of privacy, association and spiritual identity," Olson said.

Proponents invoke most eagerly a unanimous 1967 decision referring to "freedom to marry" as "one of the most vital personal rights to the orderly pursuit by free men." Loving v. Virginia ended state bans on unions between blacks and whites in terms that put individual happiness over social approbation. "It's instructive that the Supreme Court in 1956 dodged the question of interracial marriage, but took it up in 1967," said Pamela Karlan, who also teaches constitutional law at Stanford and is openly gay. "Courts very seldom are way out in front of what at least elite public opinion is. The judges consider themselves as products of the time and place in which they live."

California in 2010 is a place where the state officials named in the lawsuit, Gov. Arnold Schwarzenegger (R) and Attorney General Jerry Brown (D), favor same-sex marriage. But concerns about how quickly society accepts change have steered wary gay rights activists clear of federal courts. The strategy was to litigate and lobby first in states regarded as hospitable to gay issues, and let the public get used to the idea.

"We still believe that's a wise course," said Jennifer Pizer, senior counsel at Lambda Legal. The advocacy group feared that a premature venture into federal courts could set back gay rights, but it welcomes the San Francisco proceedings as "a showcase" for "the many harms we suffer from being denied equal marriage."

"The activists were split," Boies said, "and to some extent, there was some split among generational lines. I think the older activists tended to be more conservative; the younger, more aggressive." Polls show a similar divide for Americans, with enough support among younger people that advocates predict "marriage equality" will eventually become the law of the land, whatever the outcome of the San Francisco case.

Or not, say defenders of traditional marriage.

"The funny thing about younger people is they tend to get older," Nimocks said. "As we become more wise and more mature, start families of our own and have a wealth of experience under our belts, things change."

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