Lawyers Seek Sea Change on Gay Rights at Supreme Court
April 28, 2015, 12:00pm

New York Times.

WASHINGTON — In the months leading to Tuesday’s Supreme Court arguments on same-sex marriage, teams of gay rights lawyers and their allies have held countless strategy sessions, drafted scores of briefs and participated in intense moot courts.

Their relentless preparation has two goals. One is to win. The other is to win big.

“Many roads lead to marriage,” said Susan Sommer, a lawyer with Lambda Legal. “But some roads would be even better than others.”

The lawyers scoured the transcripts of arguments in earlier gay rights cases, honing answers to questions that had thrown other lawyers. They visited the Supreme Court to observe unrelated cases, taking in the rhythms of the questioning and assessing the justices’ habits of mind.

At the moot courts, they peppered the two lawyers who will argue for their side with tough, sarcastic questions modeled on the ones Justice Antonin Scalia is prone to asking.

Should the Supreme Court rule that there is a constitutional right to same-sex marriage, as many expect it to, the decision could be narrow or broad. Gay rights groups are hoping to secure not only the right to marry but also a symbolic and practical victory that would transform the status of gay Americans, affirming their dignity and protecting them from other kinds of government discrimination.

Same-sex couples outside the Supreme Court on Monday in advance of arguments on marriage to be heard on Tuesday. Credit Stephen Crowley/The New York Times

There are many ways to write an opinion in favor of same-sex marriage. The justices can choose between two commands to the states, two constitutional provisions and two levels of constitutional scrutiny. In every case, gay rights groups say, the correct decision is: both.

When the Supreme Court agreed to hear four cases challenging bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, it took the unusual step of drafting two questions for the parties to address, setting aside argument time for each of them.

The first is whether states must allow same-sex couples to marry, which will be the subject of a 90-minute debate on Tuesday. The second is whether states must recognize same-sex marriages performed elsewhere, which will be debated for an additional hour.

As a practical matter, a positive answer to either question would effectively allow all same-sex couples to marry. But gay rights groups very much want to establish a right to marry in every state, and they worry that the court may settle for the incremental step of requiring states to honor marriages from outside their borders.

“While many can travel to another state to marry, others lack the good health or financial means to do so,” Walter Dellinger, a former acting United States solicitor general, wrote in a brief he filed on behalf of Freedom to Marry. “For such couples, denying a license in the state in which they reside amounts to an outright denial of the freedom to marry.”

Mr. Dellinger added that the half-measure of requiring states to recognize out-of-state marriages would carry with it a “badge of inferiority.”

But the recognition-only approach may seem attractive to some of the court’s more conservative members, notably Chief Justice John G. Roberts Jr. Such an approach could follow from the court’s 2013 decision in United States v. Windsor, which did not compel any states to issue marriage licenses to same-sex couples but did require the federal government to recognize marriages from states that allow such unions

In hoping to win on both questions, gay rights lawyers are taking a belt-and-suspenders position. Even if gay and lesbian couples are allowed to marry in their home states, Robert A. Long wrote on behalf of a group of prominent law professors, they “will be at risk of continued hostility if this court does not make clear that states may not discriminate against couples who have married in another jurisdiction.”

Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, will urge the Supreme Court to strike down four states’ marriage bans. Credit Haraz N. Ghanbari/Associated Press

Solicitor General Donald B. Verrilli Jr., the Obama administration’s top appellate lawyer, will urge the justices to strike down the marriage bans. But his position is more measured than that of the plaintiffs.

In his Supreme Court brief, Mr. Verrilli pressed arguments in favor of same-sex marriage based solely on equal protection principles, while gay rights advocates have also advanced the argument that marriage is a fundamental constitutional liberty guaranteed to all couples.

The Constitution’s equal protection clause requires the government to have reasons for treating people differently. Its due process clause protects some fundamental liberties, including those listed in the Bill of Rights, procreation, sexual intimacy, abortion and at least opposite-sex marriage.

Mary L. Bonauto, one of the lawyers who will argue on behalf of the plaintiffs on Tuesday, said her clients would rather not settle for half a loaf. “We think that both equal protection and liberty are at play here, and they’re both bound up together,” she said.

A decision based on equal protection would have more practical muscle in other areas of the law. But it would be a symbolic blow to gay rights for the court to stop short of saying directly that gay couples have a right to marry.

When the court struck down bans on interracial marriage in 1967, it relied on both constitutional principles. But the most ringing sentence in the court’s decision concerned liberty.

“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men,” Chief Justice Earl Warren wrote then.

But a 2003 decision striking down a Texas anti-sodomy law split the majority, with five justices basing their votes on liberty and one on equal protection.

Writing for the five justices, Justice Anthony M. Kennedy explained their thinking. “Were we to hold the statute invalid under the equal protection clause,” he said, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.”

Gay rights lawyers are also hoping for another victory, one that would also help their cause in realms beyond marriage. It would require the Supreme Court to take a step it has so far resisted: saying that laws discriminating against gay people are subject to the heightened judicial skepticism that applies to ones drawing distinctions based on race or gender.

“The court has an opportunity,” Ms. Sommer said, “to make explicit that laws and government actions targeting gay people do not deserve to be presumed constitutional and to require the government to justify their discrimination. Such a ruling would speed an end to the discrimination that has plagued gay Americans for decades.”

Many laws draw distinctions between different classes of people. People under 21 are not allowed to buy beer. Rich people are subject to higher tax rates. People without medical training cannot work as doctors.

If such ordinary laws are challenged on equal-protection grounds, courts merely require the government to justify them with a rational reason. That is an extremely forgiving standard.

The Obama administration’s brief seemed implicitly to concede that the marriage bans challenged in Tuesday’s cases could survive such “rational basis” review, arguing instead that they should be struck down using a more demanding form of judicial scrutiny. In their Supreme Court brief, lawyers defending Ohio’s same-sex marriage ban called the administration’s position a revealing departure from that of the couples challenging the ban.

Gay rights groups would be happy to win under any standard, and they say there are no rational reasons for the bans. But they would also welcome a searching standard of review that they could use to combat other kinds of government discrimination.

A ruling requiring heightened scrutiny “would put the movement in the strongest legal position to challenge other state, local and federal laws that disadvantage gays,” said Brian T. Fitzpatrick, a law professor at Vanderbilt University.
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David A. Strauss, a law professor at the University of Chicago, said gay rights groups were unlikely to get everything they want. “The court is likely to write an opinion that is long on majestic generalities and short on policy specifics,” he said, “and then leave it to the states and the lower courts to work out the implications.”

Lawyers defending the same-sex marriage bans are making less complex calculations than their opponents. They say the court should rule in their favor or, at a minimum, put the issue to rest.

“We hope we will have clear and final resolution of whether the courts or the people will decide this question,” said John J. Bursch, a Michigan lawyer who will argue in favor of the marriage bans, which resulted from legislative action and ballot measures. “The very worst outcome would be to leave people grasping at straws.”