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Lawyers as heroes or goats in the fight over same-sex marriage

One way or the other, the Supreme Court’s ruling this June in the same-sex marriage cases will make history.  The plaintiffs seem sure to win the narrower claim that one state must recognize a same-sex marriage license validly issued in another.  They probably will also win the sweeping claim that bars to same-sex marriage are unconstitutional.  But the outcome of that broader issue is way less certain.  And if the plaintiffs lose, gay-rights advocates will look back at the way these cases were litigated with regret.

The social movement towards marriage equality has been significantly lawyer driven.  The roots of that effort date back many years in lower-profile efforts that both established the relevant legal doctrine and shaped public perception of same-sex couples.  A team of attorneys led by Ted Olson and David Boies built on those essential efforts by filing a challenge to California’s Proposition 8 – prohibiting same-sex marriage in California – in the spring of 2009.

When they filed that case, there was at most, in my opinion, a single vote on the Supreme Court to accept their claim of a constitutional right to same-sex marriage.  No court of appeals had ever accepted such a claim.  There also was relatively little momentum towards legislative action in the great majority of states.  The Supreme Court generally decides cases within a range of options that reflect conventional wisdom and what American society is prepared to accept.  So the conventional wisdom at that time was that, for at least another decade, same-sex couples could not hope to achieve more than a recognition of a right to enter into civil unions.

The debate within the gay-rights community was how fast to proceed in pressing for more.  Many advocated a slower approach of legislative efforts and narrower court victories, such as cases that would establish the right of same-sex couples to adopt.  The strategy was to build towards a social and judicial consensus that would lead eventually to repealing or striking down discriminatory laws, including bans on same-sex marriage.

Others in that community pressed for a more aggressive strategy.  The strategy involved litigation directly against marriage bans.  The challenge to Proposition 8, for example, required that measure’s defenders to put forward actual evidence in court to justify the claim that same-sex marriage was somehow harmful.  The fact that they so publicly failed to do so was, to my mind, the most significant development in this movement.

Efforts at litigation – whether aggressive or more measured – were paired with efforts at communication.  Advocates pressed hard for a recognition – including among conservatives – that laws allowing only opposite-sex marriage rested on irrational fear and hostility.

Those efforts got a huge boost from the Supreme Court’s decision in United States v. Windsor, striking down the part of the Defense of Marriage Act prohibiting the government from recognizing the unions of legally married same-sex couples.  That ruling was part of the strategy of advocates who sought to build towards ultimate success over time, rather than attacking bans like Proposition 8 directly.  DOMA was one step removed from a prohibition on same-sex marriage.  But in the Windsor ruling, a majority of the Court spoke about the irrational hostility that statutes like DOMA exhibit towards homosexuals.  The Justices’ moral authority continued to move the country and sent a signal to the lower courts, which overwhelmingly proceeded to recognize a right to same-sex marriage.

As a result, this is up to now a story in which lawyers have been the heroes.  The story of marriage equality is not about the attorneys; it is about the couples involved and the change that our society is going through.  But the lawyers have been central to making the story possible.

The stakes are now higher because the Justices have agreed to decide the ultimate question whether same-sex marriage bans are constitutional.  We are coming closer to the end of the road.  That ruling will dictate whether – for the next couple of decades – we should continue to think of the lawyers as the heroes of that movement, or instead as the goats.  It is an open question because the attorneys made a number of critical decisions that required the Justices to decide the issue before this summer.  That strategy may bring equality for their clients and thousands of others who are similarly situated, or it may set back that effort for ten or twenty years.

The Supreme Court decided Windsor nineteen months ago.  That has been a lifetime in terms of how a wide swath of American society looks at the question of same-sex marriage.  Support for marriage equality has grown substantially over the past several years, and the pace has only increased recently.  It has been unlike any other social movement in my lifetime, and unlike few if any in the nation’s history.

But that nineteen months is just the blink of an eye for the Supreme Court.  As an institution, the Court is built on precedent – the idea that things stay the same.  The Justices themselves tend to be older.  They don’t follow social media.  They don’t pivot with fast social change.  To them, the country today seems very much like the country five years ago, when the Proposition 8 suit was filed.  Whatever the Justices thought of same-sex marriage then – i.e., that it was not within the mainstream of society’s views – will be a lot like what they think of it today.

And my impression is that the Justices have been asking for more time before confronting this issue.  They may have wanted the time for themselves.  Or they may have wanted it to give more conservative parts of the country time to adapt.  Or both.

But it does seem like they have been trying to avoid deciding the question –  yet.  They had two opportunities, and passed on both.  At the same time the Court decided Windsor, it had before it the Proposition 8 case, which directly presented this issue.  But the Justices refused to resolve it.  By a five-to-four majority, the Court decided that for technical reasons it did not have the power to decide the case.  Three of the Court’s more liberal Justices – Ginsburg, Breyer, and Kagan – joined that decision.  Justice Kennedy – widely viewed as the pivotal fifth vote – would have reached the merits.

In other words, any one of those three could have cast a vote in 2013 that could have resulted in a ruling on the merits.  But they did not.

Just a few months ago, the Court had another opportunity.  After Windsor, lawyers filed lawsuits challenging most state bans on same-sex marriage.  For a time, all those cases succeeded in the courts of appeals.  States then filed petitions challenging rulings that struck down bans on same-sex marriage.  The issue is so important that it would have been perfectly appropriate to grant review, despite the absence of any disagreement in the courts of appeals.  After all, the Court had previously granted certiorari in the Proposition 8 case.  But this time, the Court declined to step in at all, denying certiorari in all of the states’ petitions.

This time, the Justices had essentially no choice but to step in.  A three-judge panel of a federal court of appeals – the Sixth Circuit – had issued a ruling upholding several same-sex marriage bans.  The Supreme Court views itself as having the responsibility of resolving those conflicts, so that federal law means the same thing everywhere in the country.

But it was the attorneys who effectively forced the Court to decide these cases right now, rather than in a year.  When the three judges of the Sixth Circuit ruled, the challengers’ lawyers declined to ask the full court of appeals to reconsider the cases.  They also declined to take the full time available to seek Supreme Court review.  Instead, they filed their petitions very quickly, on a schedule that would require the Justices to decide the merits of the cases this Term.

If the lawyers had filed the petitions only two weeks later, oral argument in the cases would have been pushed back by six months.  In fact, that would have been true if the plaintiffs’ attorneys in any of the cases had moved more slowly.

The Court’s ruling would have come in the spring of 2016, rather than this June.  In the meantime, hundreds or thousands of same-sex couples would have been married in the many states that now recognize same-sex marriage.  It would have become plain that those are loving families, many with children, that play an essential role in their communities.  In other words, there would have been some more time for society to change and for the Justices to catch up with society.

On the other hand, that delay would have come at a cost for the couples involved.  Many could have gotten married in other states.  But in their home states, their unions would have been ignored or at least diminished as second-class.  Whatever the reasons, it would have been morally hard to tell the plaintiffs in Brown v. Board of Education that they had to wait another year for justice.

We will never know confidently what effect the attorneys’ strategy had on the outcome.  If they prevail in invalidating same-sex marriage bans, we will know that they brought their clients a massive victory more quickly.  If they fail, we won’t be able to say the result necessarily would have been different if they had been more patient.

But for this question, the handwriting is on the wall.  Whether now or instead in one or two decades, the Supreme Court is going to hold that same-sex marriage bans are unconstitutional.  Most of our society will have concluded that these statutes represent raw hostility and fear.  The Court will not be left behind.  For those who hope to see that ruling, hopefully the Justices haven’t been asked the question too soon.

Recommended Citation: Tom Goldstein, Lawyers as heroes or goats in the fight over same-sex marriage, SCOTUSblog (Jan. 19, 2015, 1:56 PM),