WASHINGTON – Four years ago, many gay rights advocates shook their heads when superlawyers Theodore B. Olson and David Boies announced they would challenge California’s ban on gay marriages in federal court and take the case all the way to the U.S. Supreme Court.
It was too risky, the skeptics said. Voters in state after state were rejecting same-sex marriage, and no federal judge had said such bans were illegal. One liberal legal scholar called the lawsuit a “Hail Mary” pass.
But now that Proposition 8’s ban on gay marriage is set for a hearing Tuesday before the Supreme Court, the lawyers and activists who started the case think they may be on the verge of a historic victory. Even the early doubters are hopeful. “We think the time is right,” said Los Angeles lawyer Theodore J. Boutrous Jr., Olson’s partner on the case. “Everything seems to be breaking in favor of marriage equality.”
Olson and Boies are urging the court to rule that gays and lesbians have an equal right to marry under the Constitution, a decision that would not only strike down the California ban but could make gay marriage legal nationwide. That is “the right result,” Boies said last week. “There is no rational or legitimate reason for the government to deny marriage to these loving couples.”
That may go too far for the court’s majority. The conventional wisdom among legal experts is that the court will stop short of declaring that gays and lesbians have a right to marry nationwide. A narrow ruling voiding Proposition 8 would bring gay marriage to California, but would not force a change in states where strong opposition to the idea remains. Nine states and the District of Columbia authorize same-sex marriages.
The justices have given themselves a long menu of options in the California case. That suggests that at least some of them are determined to avoid a broad decision.
Chief Justice John G. Roberts Jr. often looks for a narrow way to decide a major case. He also focuses on the procedural rules, and there is some doubt over whether the sponsors of Proposition 8 have “standing” to represent the state of California in the case. The sponsors of the gay marriage ban are private citizens, and their opponents say they do not have a personal stake in the case that would give them legal standing.
If the high court were to punt for procedural reasons in the Proposition 8 case, most lawyers say, California’s gay marriage ban would fall as a result of U.S. District Judge Vaughn Walker’s ruling that declared it unconstitutional. Others say that a procedural ruling might mean the only winners would be the two gay couples who filed the suit to overturn the ban.
In another scenario, the court might follow a procedural finding on Proposition 8 with a major decision on the federal Defense of Marriage Act, the case to be heard Wednesday. This creates the possibility of a ruling that the government cannot discriminate against gays and lesbians and deny equal benefits to gay couples, but it would not mandate that all states allow gay marriage.
Some legal scholars, citing recent public opinion polls and votes in several states, said it was unlikely that the court would completely shut the door on gay marriage. Harvard Law School professor Michael J. Klarman, author of a recent book on the legal fight over same-sex unions, said the justices would not want to put their names to an opinion that would be seen over time as narrow-minded.
The menu of options facing the court could complicate the arguments this week and make it especially hard to forecast the outcome. They also may prove crucial in June if the justices find themselves closely split, as they were last year in the case on President Barack Obama’s health care law. Then, Roberts found a narrow option for upholding the Affordable Care Act that appealed to him alone, and the four liberal justices opted to join him.
This time, the four liberal justices are likely to take their cue from Justice Anthony M. Kennedy. If he is willing to strike down Proposition 8 narrowly or rule broadly in favor of same-sex marriage, they would probably join him to make a majority.
The court’s seniority system puts Kennedy in position to write the majority opinion in that event. When the justices meet in their private conference late this week, they will vote on whether to uphold or reverse the 9th U.S. Circuit Court of Appeal’s decision striking down Proposition 8. Roberts speaks first, followed by Justice Antonin Scalia. Both are likely to vote to reverse the 9th Circuit’s decision.
Kennedy, 76, a California native, speaks next. If he agrees with the 9th Circuit that Proposition 8 should be struck down, he would take charge of writing the court’s opinion, assuming the four liberal justices – Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan – agreed with him.
Kennedy is a libertarian conservative, and he has written the court’s two strongest opinions supporting gay rights. In 1996, the court faced a Colorado voter initiative that barred all civil rights protections for gays and lesbians. Kennedy spoke for the court in striking down the amendment on the grounds it treated gays as second-class citizens. Ten years ago, he wrote the court’s opinion striking down sex laws in Texas and elsewhere that targeted gays.
A few month later, judges in Massachusetts cited Kennedy’s opinion as a precedent for the first ruling giving gays and lesbians a right to marry.
Kennedy’s opinions also persuaded Olson and Boies they should take the marriage equality issue to the Supreme Court. And some of the California gay rights lawyers who were dubious four years ago acknowledge that they see it differently now.
“Things have changed remarkably,” said Jon Davidson, legal director for Lambda Legal. “We are in a very different world today.”