After more than two decades of legal battles, rallies, protests and campaigns, proponents of gay marriage say they are increasingly confident as they await their day in court.
The Supreme Court on Tuesday begins two days of oral arguments that will at heart determine if efforts at the state and federal level to block the recognition of same-sex marriages can pass constitutional muster. With opinion polls moving their way and with nine states and the District of Columbia now recognizing gay unions, same-sex marriage advocates say momentum is clearly on their side.
“I think the direction of the country is clear,” Theodore Boutrous, an attorney with the American Foundation for Equal Rights, which is representing two California gay couples in Hollingsworth v. Perry, one of the two cases that come before the high court this week. The case centers on whether the state’s voter-approved Proposition 8 against gay marriage should stand.
Not only is there growing support for gay marriage, Mr. Boutrous said — citing the American Academy of Pediatrics’ new support for gay marriage as being “in the best interest” of children announced last week — but the legal arguments “directly support and point in one direction, and that’s that Proposition 8 must be struck down.”
While the Supreme Court justices could opt for a more narrowly crafted decision, the goal is full legalization of gay marriage throughout America, Mr. Boutrous and other marriage-equality supporters said in a recent briefing with reporters.
Supporters of traditional marriage, however, say the high court can — and should — uphold Proposition 8 and the 1996 federal Defense of Marriage Act, arguing both reflect the nation’s historical meaning of marriage and serve the vital social purpose of connecting children to their mothers and fathers.
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Marriage — i.e., the legal union of one man and one woman — “is the cornerstone of Western civilization,” Austin R. Nimocks, a lawyer with the Alliance Defending Freedom, which is helping defend Proposition 8, said during a Tuesday briefing hosted by the Heritage Foundation.
“There’s no such thing as ’parenting’ in the abstract,” said Heritage Foundation scholar Ryan T. Anderson. There is “mothering” and there is “fathering,” and “children do best with both,” he said.
Added constitutional scholar John Eastman: “Does the Constitution render traditional marriage unconstitutional? I think at the end of the day, the court is going to say ’no’ to that.”
Major rallies to be held
On Tuesday, major pro- and anti-gay marriage demonstrations are expected as the Supreme Court hears 60 minutes of oral arguments about whether Proposition 8 is constitutional under the Equal Protection Clause of the 14th Amendment. In one sign of the intense interest the case has sparked, Supreme Court officials confirmed to The Associated Press that lines had begun forming Thursday for the few public seats available to watch the arguments — five full days before the court convenes.
Proposition 8, passed by voters in November 2008, says “only marriage between a man and a woman is valid or recognized in California.” It was approved by voters to trump the California Supreme Court, which in May 2008 legalized gay marriage; in the few months between the court’s ruling and Election Day, some 18,000 gay couples married in California.
Former George W. Bush administration Solicitor General Theodore Olson, representing gay couples Kristin Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, will ask the high court to uphold two lower-court rulings that struck down Proposition 8. With President Obama last year announcing his own switch in favor of gay marriage, Obama administration Solicitor General Donald Verrilli Jr. will also argue that the proposition is unconstitutional.
Proposition 8 is defended by Washington, D.C., lawyer Charles J. Cooper, who represents Dennis Hollingsworth and others associated with ProtectMarriage.com, which backed the voter initiative.
On Wednesday, the high court will hear nearly two hours of arguments — an unusually long time for a single case — on a lawsuit on the constitutionality of the federal Defense of Marriage Act.
DOMA, enacted by Congress in 1996 to prevent Hawaii courts from legalizing gay marriage and requiring that those unions be recognized by all of the other states and the federal government, says that, for federal purposes, marriage is the union of one man and one woman. A separate section of the act, which is not a part of the lawsuit, holds that states do not have to recognize other states’ marriage laws regarding same-sex unions.
The DOMA case was brought by Edith Windsor, a New York lesbian who was forced to pay more than $363,000 in federal estate taxes because the government, citing the act, refused to recognize her Canadian marriage to her late partner. Ms. Windsor is being represented by American Civil Liberties Union lawyers. The Obama administration Justice Department announced in February 2011 that it would no longer defend constitutional challenges to DOMA, and Mr. Verrilli will ask the court to overturn the act.
It is estimated that the restrictive definition of marriage contained in DOMA applies to more than 1,000 federal laws and programs, including such basic items as determining Social Security benefits or filing federal income taxes.
Because the Obama administration declined to do so, the case for the act is being handled by a legal group funded by the Republican-dominated House of Representatives. Paul D. Clement, also a former solicitor general under Mr. Bush, is handling the argument.
The Supreme Court is expected to issue its decisions by June.
In one measure of the intense interest the two cases have generated, some 180 friend-of-the-court briefs have been filed in the cases. More than 50 briefs ask the high court to overturn Proposition 8, and about the same number urge the repeal of DOMA. These gay-marriage supporters include prominent groups from legal, political, civil rights, medical, mental health, educational, business and social service sectors, as well as liberal-leaning religious groups.
Another 70 briefs advise the high court to uphold the two laws, saying marriage is historically between a man and a woman, and that the government has a clear rationale to ensure that children are legally connected to their mother and father. Traditional-marriage supporters include legal scholars, state attorneys general, traditional values groups, religious liberty groups, family scholars and international jurists.
High stakes
The stakes are overwhelmingly high: The American Foundation for Equal Rights and other gay-marriage activist groups maintain that if the high court strikes down Proposition 8 and DOMA, all anti-gay marriage laws — even in states that recently voted against recognizing gay unions — must fall.
“Certain rights are so fundamental, like the right to marriage, that no state can infringe on them, regardless of how the voters of that particular state feel,” said David Boies, another lead attorney with the foundation.
Defenders of the marriage laws counter that the high court should uphold both laws precisely because the people of America and individual states need to work through the issue themselves, either through the ballot box or through their elected officials.
Many gay marriage opponents say court decisions overriding all state laws and statutes could provide a political rerun of the 1973 Roe v. Wade debate on abortion, according to Mr. Eastman, who submitted a brief defending Proposition 8 with former Reagan administration Attorney General Edwin Meese III.
Instead of settling the abortion debate, the high court’s Roe decision locked the nation into contention by legalizing abortion nationwide overnight, said Mr. Eastman. Just as with Roe, “The Supreme Court cannot end the debate in this country about marriage,” he said.
The Supreme Court “should leave the question of marriage to Americans and our democratic institutions,” said Mr. Nimocks.
But gay-rights supporters adamantly reject such arguments.
Gay couples, such as Ms. Perry and Ms. Stier, already have lived more than a decade without marriage because of discriminatory laws, said Mr. Boies. “You can’t just say we’re going to allow every state to wait as long as it wants before it recognizes basic constitutional rights.”
“This country is ready” for gay marriage, said Chad Griffin, president of the Human Rights Campaign, the nation’s largest gay-rights advocacy group, citing a recent ABC/Washington Post poll that showed 58 percent of Americans and 81 percent of young adults support gay marriage.
• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.
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