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10 years later, another Supreme wait

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

The U.S. Supreme Court (Washington Blade file photo by Michael Key)

Expectations are high as the wait continues for two decisions expected in June on marriage cases before the U.S. Supreme Court, just as they were 10 years ago when gay rights supporters awaited what amounted to landmark rulings in two other cases.

In 2003, two cases reshaped the landscape for gay rights: the U.S. Supreme Court decision in Lawrence v. Texas, which struck down state sodomy laws throughout the country, and the Massachusetts Supreme Court decision in Goodridge v. Department of Public Health, which for the first time led to the legalization of marriage equality in a U.S. jurisdiction.

The two cases currently before the court — Hollingsworth v. Perry, which aims to strike down California’s Proposition 8, and United States v. Windsor, which is challenging the Defense of Marriage Act — are different in many respects from the cases 10 years ago. Lawrence was related to sodomy laws and Goodridge was a state lawsuit that resulted in a change only in Massachusetts. Still, they’re similar in terms of their potential significance.

The two attorneys who made arguments before the courts in the decades-old lawsuits — in the Goodridge case, Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, and, in the Lawrence case, Paul Smith, a partner at Jenner & Block — acknowledged the magnitude of the cases both then and now, but said it’s hard to compare the significance of the older ones to the newer ones.

Smith said we won’t know the significance of the DOMA and Prop 8 cases until the Supreme Court rules on them, but touted the Lawrence decision striking down sodomy bans across the country as significant in any event.

“It provided the foundation for all the progress that has been made on marriage and other forms of discrimination over the past 10 years,” Smith said. “It did that by establishing that our relationships are just as important and valuable as different-sex relationships and by saying that the government can’t use morality as a justification for interfering with individual choices about who to love and how. With those principles in place it’s very hard for anyone to come up with a legitimate and persuasive justification for discrimination based on sexual orientation.”

Similarly, Bonauto said “it’s not really easy” to compare the significance of the Goodridge case to the Perry and Windsor lawsuits, recalling the different cultural climate 10 years ago in which the Massachusetts case was argued.

“In 2003, these waters were largely uncharted,” Bonauto said. “There were zero marriage states, a civil union system in Vermont, and 36 states with discriminatory statutes and four states with amendments. But then, as now, we were right; right on the constitutional principles and the utter absence of legal justifications for this discrimination.”

Those court rulings — in particular the Goodridge decision because it was the first successful case for full marriage equality in the United States — paved the way for 11 more states to approve same-sex marriage over the course of 10 years, including the legalization of marriage equality in Minnesota just this week.

Just as observers are parsing statements from justices now in an attempt to determine what the court may rule on Prop 8 and DOMA, followers of the court cases a decade ago were also trying to predict the future based on what was said during oral arguments.

In Lawrence, Smith said moderate justices at the time — Associate Justice Anthony Kennedy and then-Associate Justice Sandra Day O’Connor — were “uncharacteristically quiet,” making it difficult to predict how the court would rule.

“But we took hope from the fact that they didn’t say anything negative,” Smith added. “We were relatively optimistic that the court would strike down the sodomy laws once the court decided to take the case.”

For Goodridge, Bonauto said the wait was different from now in two regards: first because same-sex marriage wasn’t legalized anywhere in the country at the time, and second because there was no set timeline for when the Massachusetts Supreme Court had to make a decision.

“We thought and hoped we were right on the timing,” Bonauto said. “There were a lot of nerves and uncertainty while we waited. The fact that we didn’t know when the decision would come — no clue at all — added to the nerves and fueled the rumor factory. In the end, the decision turned out to be beautifully written and world-changing.”

In the present, many observers believe that the Supreme Court will issue a decision that will strike down DOMA on its merits — either based on equal protection or federalism grounds — although issues of standing were examined.

For Prop 8, much attention has been given to justices’ interest in the standing of Prop 8 proponents to defend the measure in court. A determination that they lack standing would leave in place a lower court ruling and likely invalidate the ban on same-sex marriage in California.

The standing issues before the Supreme Court, as Bonauto noted, also means the wait for Goodrige was different because the Massachusetts Supreme Court couldn’t rule on this basis.

“There were no outs,” Bonauto said. “They had to decide whether denying marriage to gay couples violates the Constitution of the Commonwealth or not. And I was asked very specifically in oral arguments about Vermont civil unions and a remedy that would provide those protections, and I said, ‘That was not what the plaintiffs were seeking; they were seeking access to marriage itself.’”

Notably, the oral arguments in Lawrence v. Texas took place on March 26, 2003, which is exactly 10 years to the day that oral arguments took place in the Prop 8 case on March 26, 2013. A ruling was issued in the Lawrence case on June 26, 2003 just as a ruling is expected in the Prop 8 and DOMA cases in June 2013.

In the Goodridge case, oral arguments took place before the Massachusetts Supreme Court on March 3, 2003, but a decision wasn’t rendered until Nov. 18, 2003.

Mary Bonauto, gay news, Washington Blade

Mary Bonauto (Washington Blade photo by Michael Key)

It remains to be seen whether the wording of rulings from the Supreme Court will have the same power as the language that justices handed down a decade ago. The 4-3 ruling in the Goodridge case affirmed that same-sex couples had the right to marry with never before seen language.

“The question before us is whether, consistent with the Massachusetts Constitution, the Commonwealth may deny the protections, benefits, and obligations conferred by civil marriage to two individuals of the same sex who wish to marry,” the decision states. “We conclude that it may not. The Massachusetts Constitution affirms the dignity and equality of all individuals.”

In the Lawrence case, the 6-3 opinion written by Associate Justice Anthony Kennedy determined that the framers intended language in the U.S. Constitution to be reinterpreted by later generations in accordance with their vision of liberty.

“They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,” Kennedy wrote “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Also unknown is how the public might react if the Supreme Court issues affirmative rulings for marriage equality in the Prop 8 and DOMA cases.

In 2003, the court ruling in Massachusetts — combined with then-San Francisco Mayor Gavin Newsom’s decision to issue marriage licenses to gay couples — sparked a national backlash that led in the next year to 11 states passing constitutional amendments banning same-sex marriage. Former President George W. Bush ran a successful re-election campaign in which he advocated for passage of a Federal Marriage Amendment.

But Bonauto was skeptical that the legalization of same-sex marriage led to the passage of state constitutional amendments and Bush’s re-election — saying the religious right wanted to enact the amendments anyway and analysis shows the marriage issue wasn’t as much a boon to Bush as it may seem on its face.

“By the time we had filed Goodridge, there were already 36 state statutes and four amendments,” Bonauto said. “So, for a lot of these states, they didn’t have anything else to do but to pass an amendment because they already had statutes barring marriage.  So I really view this as political opportunism both with elected officials and also the organized right-wing. It was trying to cut us off and change the facts on the ground, so that they could isolate this debate and isolate this issue in certain states.”

Given the growing acceptance of marriage equality — one widely noted recent poll shows it enjoys support from 58 percent of the American public, compared to 30 percent support in 2003 — the negative reaction to any pro-gay rulings will likely be more restrained.

In the event the Supreme Court in June renders similarly favorable decisions in support of rights for gay couples, Bonauto predicted some would speak out in opposition, but the reaction generally would be favorable.

“There are going to be people who are going to say things, and some of them have echo chambers and bully pulpits and their blogs,” Bonauto said. “I don’t think we should equate that to a backlash. I just think that is what public discourse is like in 2013. I really believe that the overwhelming majority of Americans are at a point where they accept and embrace the freedom to marry for same-sex couples.”



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Activists held signs and a flag in front of the Supreme Court in hopes of a decision on the Proposition 8 and Defense of Marriage Act cases. (Washington Blade photo by Michael Key)

On Tuesday the Supreme Court struck down two key anti-gay laws: a provision of the Defense of Marriage Act preventing the Federal Government from recognizing legal same-sex marriages performed in states where they are legal, and California’s voter-approved Proposition 8, which ended same-sex marriage rights in that state.

In a 5-4 decision, Justice Anthony Kennedy was joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, writing the opinion striking down a key provision in DOMA in the case of Windsor v. the United States, calling the law a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment,” According to

“DOMA singles out a class of persons deemed by a State entitled ot recognition and protection to enhance their own liberty,” the decision reads.

The move could open the door to federal recognition of legally married same-sex couples who have wed in states where such nuptials are legal. Immigration rights experts hope the decision also means that American citizens will be able to sponsor their same-sex spouses for citizenship, something currently against the law.

The second gay marriage decision of the day struck down California’s Proposition 8 based on standing, vacating the 9th Circuit Court’s opinion, and upholding the U.S. District Court of California’s ruling, authored by Vaughn Walker.

“We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” read the majority opinion in Hollingsworth v. Perry authored by Chief Justice John Roberts. “We decline to do so for the first time here.”

In the Hollingsworth opinion, Roberts was joined by Justices Scalia, Ginsberg, Breyer and Kagan.

Justices Scalia was joined by Justice Thomas in his dissent to the Windsor decision, with Chief Justice Roberts and Justice Alito both writing his own dissent, agreeing with Thomas in part.

In his dissent in Windsor, Scalia questions the level of scrutiny the majority applied to the law, where Alito’s dissent revolves around the question of standing, according to legal experts.

This story is developing, come back to the Blade for more throughout the day.


HISTORIC: Supreme Court strikes down DOMA, Prop 8

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Gay marriage advocates rallying at the Supreme Court earlier this year during oral arguments for two major cases. The court struck down two anti-gay laws today, opening the door for expanded rights for same-sex couples in many jurisdictions. (Washington Blade photo by Michael Key)

In a historic development, the U.S. Supreme Court handed down two decisions on Wednesday that advanced marriage rights for gay couples and will almost certainly reshape the national debate on the issue.

In one 5-4 ruling, the court determined that the 1996 Defense of Marriage Act is unconstitutional because it violates due process and equal protection for same-sex couples under the Fifth Amendment to the U.S. Constitution. That decision means the U.S. government must begin recognizing same-sex marriages for a broad range of benefits, including those related to federal taxes and immigration law.

Associate Justice Anthony Kennedy wrote the opinion and was joined by Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy said. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

The dissenting justices were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas and Samuel Alito. In his opinion, Roberts says Congress acted constitutionally in passing DOMA and took issue with the authority the court granted itself in overturning the anti-gay statute.

In another 5-4 decision, the court determined anti-gay forces don’t have standing to defend California’s Proposition 8. That decision leaves in place a district court injunction that prohibits the state of California from enforcing its ban on same-sex marriage. Gay couples will be able to marry in the state once the U.S. Ninth Circuit Court of Appeals lift its stay.

Roberts wrote the majority opinion for the court and was joined by Scalia, Ginsburg, Breyer and Kagan. Kennedy wrote the dissenting opinion and was joined by Thomas, Alito and Sotomayor.

“The Article III requirement that a party invoking the jurisdiction of a federal court seek relief for a personal, particularized injury serves vital interests going to the role of the Judiciary in our system of separated powers,” Roberts writes. “States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.”

The court’s ruling in the case against Prop 8, known as Hollingsworth v. Perry, is specific only to California — meaning the justices didn’t grant the expansive ruling that supporters of marriage equality had sought to bring marriage equality to all 50 states.

Shortly after HRC President Chad Griffin walked out of the court with plaintiffs in the marriage cases, he received a call from President Obama who was aboard Air Force One. Obama congratulated Griffin for the victories as reporters and onlookers watched.

The decisions were handed down 10 years to the day that the Supreme Court announced its landmark decision in the 2003 case of Lawrence v. Texas, which struck down state sodomy laws throughout the country.

The challenge to DOMA, known as United States v. Windsor, was filed by the American Civil Liberties Union and others in 2011 on behalf of lesbian New York widow Edith Windsor. Upon the death of her spouse Thea Spyer in 2009, Windsor had to pay the U.S. government $363,000 in estate taxes because of DOMA — a penalty that she wouldn’t have faced if she were married to a woman.

The decision striking down DOMA affirms the initial rulings against the federal anti-gay law last year by U.S. District Judge Barbara Jones and the U.S. Second Circuit Court of Appeals.

The Obama administration helped in securing the ruling against DOMA. After it stopped defending DOMA in 2011, the U.S. Justice Department began filing briefs against the law and sent attorneys to litigate against it during oral arguments. U.S. Solicitor General Donald Verrilli argued against DOMA before the Supreme Court, saying the law doesn’t hold up under the standard heightened scrutiny, or a greater assumption it’s unconstitutional.

But the Supreme Court didn’t get to the issue of heightened scrutiny in the DOMA case because it found the law was unconstitutional under the less stringent standard of rational basis review.

The case against Prop 8 was filed by the California-based American Foundation for Equal Rights in 2009 on behalf of two plaintiff couples — a lesbian couple, Kristin Perry and Sandra Stier, and a gay male couple, Paul Katami and Jeffrey Zarrillo — who were unable to marry because of the state’s constitutional ban on same-sex marriage.

The attorneys representing them were Theodore Olson, a former U.S. solicitor general during the Bush administration, and David Boies, a so-called “dream team” of attorneys who represented opposite sides in the 2000 case Bush v. Gore.

Because the state officials — California Gov. Jerry Brown and Attorney General Kamala Harris — refused to defend Prop 8 in court, anti-gay groups that put Prop 8 on the ballot in 2008 such as took up the responsibility of defending the measure. The California Supreme Court certified the groups had standing under state law and the U.S. Ninth Circuit Court of Appeals affirmed they had standing.

But the high court determined that these groups — even though attorney Charles Cooper spoke on behalf on them in oral arguments — don’t have standing because they lack any legal injury in the wake of the lower court’s determination that Prop 8 is unconstitutional.

The Obama administration had also assisted in efforts to secure a ruling against California’s Proposition 8. The Justice Department filed a friend-of-the-court brief in February saying the ban was unconstitutional and Verrilli argued in court against Prop 8, suggesting all eight states with domestic partnerships should be required to grant marriage rights to gay couples.

The issue of standing also came up in the DOMA case for two reasons. One, the court had questioned whether the U.S. Justice Department could have appealed the district court ruling to the Second Circuit because the initial ruling against DOMA was what the Obama administration wanted. Two, the court questioned whether the Bipartisan Legal Advisory Group, a five-member Republican-majority panel within the U.S. House, had standing to take up defense of DOMA in the administration’s stead.

But the court determined an active controversy remains in the case because the U.S. government still hasn’t refunded Windsor the $363,000 she paid in estate taxes. Once the court determined it has jurisdiction based on the Obama administration’s appeal of the lawsuit, it didn’t get to the issue of whether BLAG has standing.

In his ruling, Kennedy writes the continuation of litigation in the absence of a federal ruling on DOMA would cause uncertainty.

“[T]he costs, uncertainties, and alleged harm and injuries likely would continue for a time measured in years before the issue is resolved,” Kennedy writes in the ruling. “In these unusual and urgent circumstances, the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”


Elated plaintiffs call court decisions victory for families


HRC President Chad Griffin joined plaintiffs in the Prop 8 case on the Supreme Court steps Wednesday. (Washington Blade photo by Michael Key)

The lesbian and gay couples that served as the main plaintiffs in Wednesday’s historic Supreme Court decision overturning California’s Proposition 8 ban on same-sex marriage said the decision would have a profound positive impact on gay families in their home state and beyond.

California residents Kris Perry, after whom the case has been named, and her partner Sandy Stier told reporters and a crowd of onlookers outside the Supreme Court that the enormity of the legal ramifications of the case was for them overshadowed by its impact on their family, especially their four sons.

“Today is a great day for American children and families,” Perry told the gathering. “Sandy and I want to say how happy we are not only to be able to return to California and finally get married but to be able to say to the children in California, no matter where you live, no matter who your parents are, no matter what family you’re in, you are equal.”

Perry added, “And today we go back to California and say to our own children, all four of our boys – your family is just as good as everybody else’s family. We love you as much as anybody else’s parents love their kids. And now we’re going to be equal to every other family in California.”

Californians Jeff Zarrillo and his partner Paul Katami, the other couple that served as lead plaintiff’s in the Prop 8 case, told the gathering outside the Supreme Court that they, too, look forward to returning to their home state to get married.

“Prop 8 allowed us to turn our anger into action,” Katami told the gathering. “So although we celebrate today, we work to make sure that everyone like Jeff and I and Kris and Sandy can just get married because it’s the natural next step in our relationship,” he said.

“We want to join the institution of marriage not to take anything away but to strengthen it, to live up to its ideals.”

In a development that prompted both cheers and tears from onlookers, Katami turned to Zarrillo, his voice breaking, and said, “And today I final get to look at the man I love and say, ‘Will you marry me?’”

With Zarrillo nodding in the affirmative, the two men kissed and embraced as news photographers TV camera crews recorded their action.

Following the two couples’ initial comments, which came at a news conference organized jointly by the Human Rights Campaign and the American Foundation for Equal Rights (AFER), which initiated the legal challenge to Prop 8 five years ago, the couples walked along the sidewalk outside the Supreme Court building speaking to individual television news outlets whose camera crews lined the sidewalk.

During one of those interviews, HRC President Chad Griffin, who accompanied the couples, excitedly informed them that President Obama just called Griffin’s cell phone from Air Force One, which was taking the president on a state visit to Africa.

Reporters and onlookers watched with interest as Griffin handed his cell phone to the couples, who spoke briefly with Obama.

“It’s incredible,” Griffin told reporters minutes later. “The president just called from Air Force One and he was thanking our team and the plaintiffs for their courage. And he said because of their courage thousands upon thousands of people will be able to join in the celebration of marriage very soon,” Griffin said.

Katami and Zarrillo told people standing near them that they thanked the president for calling them and invited him to their wedding.

“They’re quick,” observed attorney Theodore Boutrous, the law firm partner of lead plaintiff attorney Ted Olsen in the Prop 8 case. Olsen, who was in court on Wednesday in an unrelated case in Philadelphia, wasn’t able to attend the Supreme Court session announcing the Prop 8 decision.

“They get the president on the phone and they invite him to their wedding,” said Boutrous. “So it’s exciting. Not too many cases end with such a joyous thing, that people who want to get married can get married. This is a good one,” he said.

Perry told the Blade she, too, was excited to hear from Obama.

“When the leader of the free world tells a couple like Sandy and I that he respects our relationship and he hopes we can get married soon and show our kids that we’re a family, it says everything,” she said. “We couldn’t be prouder to have him call and tell us that.”

Fred Sainz, HRC’s vice president for communications, said Edith Windsor, 85, the lead plaintiff in the DOMA case, which bears her name, would be celebrating the decision in New York City. Windsor is a New York State resident who challenged DOMA in court following the death of her wife, whom she married in Canada, and the refusal of the IRS to waive her estate tax in the same way that tax is waived for opposite-sex married couples.

With DOMA overturned Wednesday by the Supreme Court, Windsor’s attorneys are expected to call on the IRS to retroactively refund the estate tax she was forced to pay.

Windsor was also scheduled to serve as a grand marshal in New York City’s LGBT Pride Parade this weekend.


Supreme Court set to hear oral arguments on marriage

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All eyes will be on the Supreme Court next week when it hears arguments in the Prop 8 and DOMA cases. (Washington Blade photos by Michael Key)

At a time of intense national debate, the U.S. Supreme Court for the first time ever will hear oral arguments next week on whether marriage rights for gay couples are protected under the U.S. Constitution.

Attorneys on both sides will make their arguments in two separate cases, on two separate days and regarding two separate anti-gay measures, but the state of marriage equality across the country could be altered depending on the rulings in either of the cases.

On Tuesday, the court will hear arguments on Proposition 8, a ballot measure approved by California voters in 2008 that stripped away existing marriage rights in the state for same-sex couples. The next day, the court will listen to arguments on the federal Defense of Marriage Act, which prohibits federal recognition of same-sex marriage.

Chris Stoll, a senior staff attorney at the National Center for Lesbian Rights, said the oral arguments provide an opportunity for observers to glean what justices are thinking based on their line of questioning.

“It’s true that appellate courts, I would say, mostly base their decisions on the written submissions on the briefs,” Stoll said. “The main purpose of oral argument is to let the justices have questions that they have answered by the lawyers, and so, what the lawyers come in to say isn’t really the focus; it’s really what the justices want to have answered.”

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders, said oral arguments are a “filtering process” that provide justices the opportunity to explore possible outcomes of their rulings and persuade each other.

“That’s part of why they’re so active,” Bonauto said. “They’re trying to influence each other’s votes and perspectives on it, and, effectively, argue the case themselves. If you ever read a Supreme Court transcript, it’s usually very difficult to read because there are so many interruptions.”

In the Prop 8 case, known as Hollingsworth v. Perry, Ted Olson, a former solicitor general under President George W. Bush, will argue against the constitutionality of the measure on behalf of the American Foundation for Equal Rights. Based on the legal brief he filed, Olson will likely argue against the merits of Prop 8 on the basis that it violates due process and equal protection of gay plaintiff couples under the U.S. Constitution.

The ban on same-sex marriage will be defended by anti-gay groups, such as, because California state officials have declined to defend the marriage ban. The lawyer arguing on behalf of the anti-gay measure will likely be private attorney Charles Cooper, who defended Prop 8 during the district court trial in 2010.

Depending on the scope, a ruling in the Prop 8 case in favor of the plaintiffs could be a jackpot for same-sex couples. Justices could affirm the limited ruling from the U.S. Ninth Circuit Court of Appeals, which affected only California; determine that the nine states, including California, that offer domestic partnerships must offer same-sex marriage; or issue a sweeping ruling that brings marriage equality to all 50 states.

In the DOMA case, known as Windsor v. United States, Roberta Kaplan, a New York-based attorney, is set to argue against the constitutionality of the anti-gay law in a coordinated effort with the American Civil Liberties Union. Kaplan’s client is Edith Windsor, an 83-year-old lesbian who was forced to pay $363,000 in estate taxes upon the death in 2009 of her spouse, Thea Spyer, because of DOMA.

James Esseks, director of the ACLU’s LGBT Project, said preparations have been underway for oral arguments, including moot courts where individuals impersonate justices to ask possible questions that the real ones may pose.

“People do that for Supreme Court arguments, people do that for appeals court arguments, people do that for trial court arguments — we’ve done that all along,” Esseks said. “It’s just the normal thing that people do.”

On the other side of the DOMA case will be Paul Clement, another former U.S. solicitor general from the Bush administration. He was hired at a rate of $520 an hour by the House Republican-led Bipartisan Legal Advisory Group to defend DOMA in court.

The stakes in the DOMA case are high as well. A ruling striking down DOMA would have multiple impacts on married gay couples. Among other things, they’d have access to medical leave if their spouses need attention because they’re gravely ill or injured and Social Security survivor benefits would become available.

A ruling that strikes down DOMA would also remove a barrier for gay service members seeking spousal benefits in the wake of “Don’t Ask, Don’t Tell” repeal. According to a report published last month from the Center for American Progress and OutServe-SLDN, the average gay military family pays $5,615 out-of-pocket each year for health care insurance because they aren’t eligible for military coverage known as TRICARE.

Both oral arguments will share a common participant: U.S. Solicitor General Donald Verrilli. Since the Obama administration stopped defending DOMA in court, it has participated in litigation against DOMA and will have speaking time in arguments before the Supreme Court. Similarly, in the wake of filing a friend-of-the-court brief against Prop 8, the Justice Department will also have speaking time to argue against it thanks to a request.

In either or both cases, the Supreme Court could determine as part of its ruling that laws related to sexual orientation should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional. That’s the view the Justice Department has articulated in legal briefs against DOMA and Prop 8.

Such a decision would also have a sweeping impact because it would create a precedent that guides other courts when evaluating the constitutionality of anti-gay laws, such as bans on same-sex marriage.

But the merits issue — the question of whether Prop 8 and DOMA are constitutional — will only form part of the discussion in the cases as other issues such as standing and jurisdiction must be addressed. These issues may ultimately form the basis of the court’s rulings.

In the Prop 8 case, the question is whether proponents of the measure have standing to defend the measure in court. It’s possible — as Olson and his team have argued — the court would rule they lack standing because they aren’t harmed by Prop 8. Such a ruling would leave unanswered questions about the constitutionality of same-sex marriage in California, but likely restore same-sex marriage in that state.

The questions about standing and jurisdiction in the DOMA case are more complex. The court asked attorneys when taking up the case whether BLAG has standing to participate and whether the Obama administration’s agreement with lower courts that DOMA is unconstitutional deprives the Supreme Court of jurisdiction. It’s unclear what the fate of DOMA would be if the court decides to rule on those grounds.

GLAD’s Bonauto said she thinks the stronger argument is the court has jurisdiction to consider DOMA and will decide on the merits — but noted “they asked the question for a reason” and questions emerge if the court decides to rule on DOMA on the basis of standing.

“Most people think the Second Circuit decision goes away, then the question is what happens to the district court ruling,” Bonauto said. “Does Edie get her money back, or is there an argument that the district court ruling goes away because the U.S. switched positions in the district court. I’d like to think, at a minimum, Edie would get her money back.”

Vicki Jackson, a Harvard law professor hired by the court, will argue BLAG doesn’t have standing in the lawsuit and the court doesn’t have jurisdiction to hear the case. Deputy Solicitor General Sri Srinavasan is set to address the standing issue on behalf of the Justice Department. BLAG also has been allocated time to assert it has standing in the case, but Windsor’s attorneys weren’t granted time to talk about jurisdiction or standing.

NCLR’s Stoll said any decision from justices that would extend rights to gay couples — whether on the merits or through issues of standing — would be a “milestone” for the LGBT community.

“We have already been seeing tremendous changes in society and the level of acceptance for gay and lesbian people and for legal recognition of them through marriage,” Stoll said. “I think that if the Supreme Court ruled in whatever way in favor of the plaintiffs in these cases, that it would be a real milestone and landmark moment for our movement.”


San Francisco City Attorney speaks out

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Dennis Herrera is described as a ‘straight, devout Catholic, married man’ who has championed the cause of marriage equality. (Photo courtesy Herrera)

Dennis Herrera, San Francisco’s City Attorney since 2002, will be in the Supreme Court chambers in Washington next Tuesday observing the oral arguments over whether Proposition 8, California’s 2008 ballot measure banning gay marriage, should be upheld or overturned.

Although Herrera won’t be delivering the arguments against Proposition 8 on Tuesday, gay rights advocates in California say he has played a pivotal role since 2004 in pushing for marriage equality in that state.

Among other things, he has worked side-by-side with high profile attorneys Ted Olson and David Boies as a party to the case Hollingsworth v. Perry, which seeks to overturn Prop 8.

Jack Song, deputy press secretary for the San Francisco City Attorney’s Office, said Herrera and his legal team have been involved in “every case, every court, through every procedural twist since February 2004” in efforts to legalize same-sex marriage in California.

It was in 2004, Song noted, that Herrera provided legal support for then-San Francisco Mayor Gavin Newsom’s highly controversial decision to issue marriage licenses to gay and lesbian couples and perform same-sex marriages at city hall.

California courts initially ruled that San Francisco lacked legal authority to perform same-sex marriages and quickly invalidated those marriages. But the action by Newsom and Herrera, which was denounced by same-sex marriage opponents, has been credited with triggering litigation by marriage equality advocates – including Herrera’s office — that led to the May 15, 2008 ruling by the California Supreme Court legalizing same-sex marriage in the state.

In response to a campaign led by same-sex marriage opponents, California voters overturned same-sex marriage rights in the November 2008 referendum known as Prop 8 by a margin of 52 percent to 48 percent.

In an interview with the Washington Blade on Tuesday, Herrera discussed his work on the Prop 8 case – in the words of his deputy press secretary Song – as a “straight, devout Catholic, married man” who has championed the cause of marriage equality.

Washington Blade: What are your thoughts on the chances that Prop 8 will be overturned by the U.S. Supreme Court?

Dennis Herrera: We’re very, very optimistic. You just need to look at what has been the course of this litigation. If we go back nine years ago, all the state court proceedings and more recently in the federal court system, I can’t tell you how gratified we were both at the District Court’s ruling and the Ninth Circuit [U.S. Court of Appeals] ruling clearly showing that there’s absolutely no constitutional justification whatsoever to discriminate when it comes to the issue of marriage equality.

And that for the community to be denied equal protection under the law when it comes to the issue of marriage strains all credulity. So we’ve been gratified by the District Court’s ruling. If you look at Judge [Vaughn] Walker’s decision – a well-reasoned, well thought-out opinion after sitting through a weeks-long trial, hearing from a variety of witnesses and hearing the Prop 8 proponents come up with virtually no argument, no evidence to support their position and then to have that decision affirmed by the Ninth Circuit – we’re very, very optimistic as we’re heading into next week’s argument.

Blade: What role has your office played in the U.S. Supreme Court case on Prop 8?

Herrera: We intervened and stood shoulder to shoulder with the Gibson Dunn firm — the David Boise firm — both at trial and at the Ninth Circuit and here as we’re leading up to the Supreme Court argument. So we have been involved in every piece of state litigation on this as well as the federal action. In fact, we were the only party allowed to intervene in the case and participate on our side as a party. We have been working alongside the lead counsel in the case and continue to do so leading up to the [U.S. Supreme Court] arguments.

Blade: Could you explain as best you can in layman’s terms what we understand to be the possible outcomes by the Supreme Court? In one outcome they can uphold Proposition 8. But is the court also being asked to rule that under the U.S. Constitution, no state can ban same-sex couples from marrying?

Herrera: I think that what you see if you look at the briefs of the plaintiffs and ours – we’re very, very complimentary. Clearly the plaintiffs in the case, as represented by Ted Olsen and David Boies, are seeking the broadest possible remedy to strike down discrimination vis-a-vis marriage equality nationwide.

And if you look at our briefs, what we do is try and make sure that we offer the full panoply in a very complimentary way. We fully agree with Ted Olsen and Boies and support their contention that heightened scrutiny should apply in this case, which would essentially, if found in the plaintiff’s favor, would basically have nationwide impact. But in addition, we have argued in our brief, while we fully agree with them, that even if you limited it to California and states similarly situated to California — the prohibition on marriage should not apply. So it’s a more limited but complimentary approach. Just so the court has the full panoply of possible avenues before it. But we’re in full support of the broad argument, but if the court wants to rule in our favor but limit it to California and other states that are similar to California, we briefed that issue as well.

Blade: How would it affect other states that are similar to California?

Herrera: If you look at the [U.S.] Solicitor General’s brief, the government’s brief, they have essentially said that states like California that have extended domestic partner benefits that allow same-sex couples to adopt, those that have been out there granting rights to same-sex couples cannot take them away through tools like Proposition 8. So there’s about seven or eight states that are similarly situated to California. And they have come in and said for those states, not just California but for those others, you can’t take an approach like folks have done with Proposition 8.

Blade: Does that include states outside Ninth Circuit?

Herrera: Yes.

Blade: Some constitutional experts that study the Supreme Court, including some who support same-sex marriage, have argued that it would be better for the court to limit an affirmative decision to just California rather than issue a ruling that would require all states to recognize same-sex marriage. They say that a ruling forcing all states to legalize same-sex marriage would create too great a shock to the culture, especially in southern and certain mid-Western states. What are your thoughts on that?

Herrera: I have heard that. But, like I said, in this case we’re working along with the lead counsel and have really offered a variety of different directions the court should go. And I would like to say this. I know that people make that argument. But think about how things have changed.

Let’s just go back. Proposition 22 that passed here in California in 2000 was against marriage equality 60 to 40. And with Proposition 8 we saw what the numbers were [52 percent for Prop 8, 48 percent against]. Recently, on the same day that the federal government – the administration – came in support of our position there was a Field Poll released here in the State of California that showed that 61 percent of people now in California favor same-sex marriage as opposed to 32 percent. …

So I’m fully in support of a broader approach and I think that would be the best thing for the country. But if in its judgment the Supreme Court does not want to go that route we have offered them and the United States government has offered them another direction to go that perhaps might be more limited but ultimately we know is going to lead to the same result nationwide.

Blade: In 2004, when San Francisco Mayor Gavin Newsom allowed marriages to take place at City Hall, you supported that, right?

Herrera: Yup.

Blade: But some lawmakers in Washington at the time, including Congressman Barney Frank, thought that might be jumping the gun a little bit and that it could lead to a greater push for a constitutional amendment to ban same-sex marriage. That never passed, but some were worried that it could. Was that something that entered your mind back then?

Herrera: I think history has borne out that we in San Francisco were on the right side of history when you look at the tremendous progress that has been made over the course of the last several years. So I think that sometimes it is somewhat scary for people to take the unconventional approach and to push the envelope. But I think that the wisdom of that approach has been borne out by history.


HISTORIC: Supreme Court hears oral arguments on Prop 8

The U.S. Supreme Court heard oral arguments on California's Proposition 8 on Tuesday (Blade file photo by Michael Key)

The U.S. Supreme Court heard oral arguments on California’s Prop 8 on Tuesday. (Blade file photo by Michael Key)

The atmosphere at the U.S. Supreme Court was tense on Tuesday as justices hammered attorneys with tough questions on the constitutionality of California’s Proposition 8 — with a particular emphasis on inquiries about standing.

Within moments of the opening of the oral arguments in the Prop 8 case, known as Hollingsworth v. Perry, justices interrupted both Charles Cooper, who is arguing in favor of Prop 8, and Ted Olson, who is arguing against it on behalf of two plaintiff gay couples, with questions about standing.


Anti-gay groups, such as, are defending Prop 8 in court because California officials — Gov. Jerry Brown and Attorney General Kamala Harris — have elected not to do so. Whether these groups have standing to defend the law is a question posed by the court.

Associate Justice Sonia Sotomayor, who was appointed by President Obama, was among those asking questions about standing, saying it’s “counterintuitive” for a state to grant standing to proponents of a ballot initiative because their views are in support of the measure.

Cooper said the California Supreme Court in 2011 ruled that proponents of a ballot initiative like Prop 8 bear a responsibility to defend the measure in court should state officials decline to do so. Otherwise, public officials could effectively veto a measure by declining to defend it.

But Olson, a former U.S. solicitor general under President George W. Bush, disputed the notion that anti-gay groups have standing in the Prop 8 case because they are not elected officials.

“Because you’re not an officer of the State of California, you don’t have a fiduciary duty to the State of California, you’re not bound by the ethical standards of an officer of the State of California to represent the State of California, you could have conflicts of interest,” Olson said. “And as I said, you could be incurring enormous legal fees on behalf of the state when the state hasn’t decided to go that route.”

The issue of standing is seen as crucial because if the court determines that anti-gay groups don’t have standing to defend Prop 8, the ruling of U.S. District Judge Vaughn Walker would remain in place and marriage rights for same-sex couples would likely be restored in California.

Associate Justice Samuel Alito expressed skepticism during the oral arguments that proponents of Prop 8 lack standing to defend their ballot measure, indicating someone should be able to defend the statute if public officials decline to do so.

“In a state that has initiative, the whole process would be defeated if the only people who could defend the statute are the elected public officials,” Alito said. “The whole point … of the initiative process was to allow the people to circumvent public officials about whom they were suspicious.”

Justices known for being conservative hinted at the way they may rule in the case. Alito, appointed by former President George W. Bush, cautioned against a ruling in favor of same-sex marriage, which he said is “newer than cell phones and the Internet.”

“There isn’t a lot of data about its effect,” Alito said. “It may turn out to be a good thing. It may turn out not to be a good thing.”

Associate Justice Antonin Scalia said the legalization of same-sex marriage would necessitate the legalization of gay adoption, and sociologists have “considerable disagreements” on whether that causes harm to a child.

“I don’t think we know the answer to that question,” Scalia said.

It’s unclear what disagreements Scalia was referencing. Just last week, the American Academy of Pediatrics endorsed same-sex marriage, saying it helps children. Following Scalia’s remarks, Associate Justice Ruth Bader Ginsburg reminded Scalia that adoption isn’t at issue because California has legalized adoption rights for gay couples.

Associate Justice Anthony Kennedy, an appointee of former President Reagan who’s considered a swing vote, acknowledged that sociological information on the issue is new, but said children who are currently living with same-sex partners are suffering “legal injury” as a result of Prop 8.

“There is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children,” Kennedy said. “There are some 40,000 children in California … that live with same-sex parents, and they want their parents to have full recognition and full status.”

Chief Justice John Roberts, another Bush appointee, made comments in an exchange with Olson suggesting he doesn’t believe gay couples have a right to marry. Many had hoped Roberts would vote to overturn Prop 8 because he sided with more liberal justices in the court decision upholding the health care reform law.

“I’m not sure that it’s right to view this as excluding a particular group,” Roberts said. “When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals. The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.”

When Olson pointed out that gay couples had the right to marry before Prop 8 was passed, Roberts responded by saying that it was only 140 days after the California Supreme Court ruled in favor of same-sex marriage.

Roberts then asked Olson whether it’s more reasonable to view the situation as the state court making a change to an institution that’s “been around since time immemorial.”

“The California Supreme Court, like this Supreme Court, decides what the law is,” Olson replied. “The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married.”

The courtroom was crowded with observers who were both for and against Prop 8. Among those in attendance was California Lt. Gov. Gavin Newsom, who gained notoriety in 2004 when as San Francisco mayor he distributed marriage licenses to gay couples before the state court ordered him to stop.

U.S. Solicitor General Donald Verrilli argued against Prop 8 on behalf of the Obama administration, saying Prop 8 should be struck down because gay people have “suffered a history of discrimination” and the law should be subject to heightened scrutiny.

Verrilli said the Obama administration is “not taking a position” on whether same-sex marriage should be legalized throughout the country as a result of the ruling — but said the door could be open to such a ruling in future cases. Instead, Verrilli advocated the idea of a “nine-state solution.” Under that approach, states that offer domestic partnerships or civil unions, but not same-sex marriage, would have to allow gay couples to enter into the union of marriage.

The solicitor general said California’s own domestic partnership law providing gay couples legal benefits but not the distinction of marriage “undercuts” any rationale for withholding the label of marriage for gay couples.

But the idea of a nine-state solution seemed distasteful to justices. Associate Justice Stephen Breyer, an appointee of former President Bill Clinton, noted that states that provide absolutely no legal recognition to gay couples provide more harm to gay couples than the states that offer domestic partnerships.

Verrili also maintained the Obama administration isn’t taking a position on whether proponents of Prop 8 have standing to defend the law, but said the notion they lack Article III standing in court is the stronger argument.

Both the attorneys for and against Prop 8 also made their cases on the constitutionality of the measure that were along the lines of the briefs they previously submitted to the court.

Cooper maintained California voters in 2008 were essentially hitting a “pause button” by approving Prop 8 and were awaiting further information of the impact on other parts of the country where same-sex marriage is legal.

“That would hardly be irrational for that voter to say, I believe that this experiment, which is now only four years old, even in Massachusetts, the oldest state that is conducting it, to say, I think it better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” Cooper said.

Olson, on the other hand, argued Prop 8 was unconstitutional because the measure walls off from a certain group of people the right to marry.

“It’s an individual right that this court again and again and again has said: the right to get married, the right to have the relationship of marriage a personal right,” Olson said. “It’s a part of the right of privacy, association, liberty and the pursuit of happiness.”


Supreme Court oral arguments audio

The Supreme Court of the United States heard oral arguments today in the Hollingsworth v. Perry appeal, challenging California’s anti-gay constitutional amendment passed by ballot known as Proposition 8. Check out our in-the-courtroom analysis here.


Activists clash over marriage

Opponents of same sex marriage held a rally on the Mall and marched to the Supreme Court where they were met with chants from LGBT rights advocates. Activists from both sides of the marriage debate had gathered on Capitol Hill during the oral arguments for the Hollingsworth v. Perry case which will decide the fate of California’s Proposition 8. (Washington Blade photos by Michael Key and Blake Bergen) buyphoto 


Supreme Court sets oral arguments for marriage cases

Supreme Court, gay news, Washington Blade

State groups welcomed the U.S. Supreme Court’s decision to consider the constitutionality of DOMA, Proposition 8. (Washington Blade file photo by Michael Key)

The Supreme Court announced on Monday that it would hear oral arguments in the legal challenges against California’s Proposition 8 and the Defense of Marriage Act on two separate dates in March.

According to the calendar, arguments for the challenge against Prop 8, known as Hollingsworth v. Perry, is set for March 26, while the arguments for the challenge against DOMA, known as Windsor v. United States, is set for March 27.

The Supreme Court announced it would take up the lawsuits on Dec. 7. Justices must render a decision before their term ends in June.