WASHINGTON — If everything goes right for advocates of marriage equality, gay and lesbian couples everywhere could be celebrating their right to marry by the Fourth of July in 2013.
Eight years after opponents of same-sex couples’ marriage rights claimed state amendments banning such marriages helped keep President George W. Bush in the White House, marriage equality’s supporters now find themselves as close as they’ve ever come to their goal.
“We are now literally within months of getting a final resolution of this case that began three-and-a-half years ago,” said David Boies, one of the lawyers behind the challenge to California’s Proposition 8 that is now before the Supreme Court.
“We are all encouraged and excited about the prospect that we will finally get a decision on the merits with respect to marriage equality,” Boies, who joined former Bush administration Solicitor General Theodore Olson in bringing the suit on behalf of the American Foundation for Equal Rights, said Friday.
The stakes have never been higher for either side of the fight over marriage equality. By June, the Supreme Court could take bold action to strike down state constitutional provisions and laws prohibiting same-sex couples from marrying, reminiscent of its 1967 Loving v. Virginia decision ending mixed-race marriage bans. The court also could declare that the additional scrutiny now applied to laws based on race, religion or sex also must be used for those regarding sexual orientation.
The court also could do less than that, limiting its ruling to the Defense of Marriage Act’s federally defined “marriage” or California’s Proposition 8, allowing the patchwork of state-level laws governing the ability of couples to marry based on their sexual orientation to continue.
The high court even could declare that the Constitution grants no such right to gays and lesbians, essentially ending the chances of national answer on the marriage equality question for the foreseeable future.
Civil rights leaders, though, are opting instead to focus on the possibility, echoed throughout America’s history, that the nation could be on a path toward greater equality.
“Today’s announcement gives hope that we will see a landmark Supreme Court ruling for marriage this term,” Human Rights Campaign president Chad Griffin said Friday. “As the Court has ruled 14 times in the past, marriage is a fundamental right and I believe they will side with liberty, freedom and equality, moving us toward a more perfect union as they have done in the past.”
Griffin, now running the nation’s largest LGBT political group, knows the stakes of Friday’s news: He was the person who recruited Olson and Boies to challenge Proposition 8 in federal court.
Unquestionably, the country is undergoing a dramatic change in the way it views gay rights in an unbelievably short time.
Several lower courts have recognized equal rights of lesbian, gay, bisexual and transgender people. State legislatures have passed marriage equality bills from Washington and Maryland — where same-sex couples will soon wed — to New Jersey, where Gov. Chris Christie ultimately vetoed the bill. Voters in four states sided with marriage equality supporters in related measures this past month.
The people — from judges to lawmakers to voters — are starting to sort out an issue that less than 20 years ago appeared to be on a much slower path toward any resolution.
When President Clinton signed the Defense of Marriage Act into law in September 1996 — though “strenuously opposed” to “discrimination of any kind” — he stated, “I have long opposed governmental recognition of same-gender marriages and this legislation is consistent with that position.” His position, far from conservative, was easily the mainstream position. Only 14 Senate Democrats opposed the bill, and nowhere in the country would even recognize same-sex couples’ right to marry for another seven years.
When President Obama declared his views on marriage had “evolved” in May of this year, however, he said, “I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” Far from being a liberal position, polls suggest that his view was, again, the mainstream position. Of course, Clinton already had since “evolved” to oppose DOMA and support marriage equality. Even Bob Barr, the former House Republican who sponsored DOMA in 1996, has become a supporter of marriage equality.
The Supreme Court, while not subject to voters’ whims, still exists within the larger political environment of the nation. Friday’s announcement that the justices will be considering whether both DOMA and California’s Proposition 8 are constitutional means the high court will find itself squarely in the middle of LGBT advocates’ path to equality. And that means the nine justices will choose either to stand in the way of recent successes or to give that progress a push forward.
“I think that it is going to be so important for the United States Supreme Court to address the merits here,” Olson said Friday.
For Olson, the path to being a key advocate for marriage equality has, like the nation’s attitudes, been circuitous: the man who served as President George W. Bush’s top Supreme Court lawyer is now the lead lawyer for the two same-sex couples suing to ask the court to declare Proposition 8 unconstitutional.
Far from part of a broader political realignment, Olson has remained true to his conservative roots. He helped Wisconsin Rep. Paul Ryan, a staunch opponent of marriage equality, prepare for the vice presidential debate this past fall, even as he has aggressively put himself out as a leading national supporter of marriage equality.
“It will be an education for the American people,” Olson said of the coming arguments over the California amendment. “We are very confident the outcome of this case will be to support the rights of our gay and lesbian brothers and sisters.”
Likewise, attorneys working on the Defense of Marriage Act case were upbeat about their prospects — and aware of the implications.
The DOMA challenge that the Supreme Court will be hearing is a story that spans the gay rights movement in America. It is the story of a couple — Edith Windsor and Thea Spyer — who met, dated and were engaged to one another in the years before the 1969 riots at the Stonewall Inn.
After 40 years, the two were finally married in 2007. When Spyer died two years later, though, Windsor had to pay a $350,000 estate tax bill that she would not have owed if either had been a man.
Roberta Kaplan, the lead attorney arguing along with the American Civil Liberties Union on Windsor’s behalf, said Friday night, “Edie is absolutely thrilled that it is her case that will be before the United States Supreme Court. And we are as well. Edie’s life story, both before and after her life with her late spouse Thea Spyer, compellingly reflects both how dramatically things have changed for gay people in our country and how discriminatory and unconstitutional DOMA really is.”
The court’s decision to take on the issue itself may even be having an effect on the political terrain, with LGBT advocates suggesting they will spend the next six months doing all they can to improve Olson and Kaplan’s cases to the Supreme Court.
At Freedom to Marry, founder and president Evan Wolfson was blunt on Friday. “By winning more states and winning over more hearts and minds, we maximize our chances of victory in court, showing the justices that when they do the right thing, it will stand the test of time and be true to where the American people already are.” Indeed, Freedom to Marry, HRC and other advocates already have met with groups in Rhode Island to strategize on a marriage equality bill’s path there, and a similar bill is expected early in the year in Illinois. And activists are planning to launch campaigns in more states in the coming months.
Of course, the private reaction from civil rights advocates Friday was not all positive. Some had hoped the Supreme Court, for now, would avoid the larger issue of marriage equality and instead focus on federal prohibitions of recognizing same-sex couples legally married by a state.
That building-block strategy is similar to previous civil rights fights and was the aim of the established LGBT legal groups until the American Foundation for Equal Rights filed its challenge to California’s Proposition 8, a move that greatly accelerated the legal fight.
Like leaders of the civil rights movement fighting for racial equality a half-century ago, the established LGBT groups worried forcing the issue could result in court decisions that would put the movement back decades, and Friday’s news of the high court’s decision again raised those concerns, at least privately.
Publicly, though, the front is unified and the forces are pushing for victory at the Supreme Court. From now through the day the Supreme Court decides these two cases, LGBT advocates will try to keep together that front — knowing these cases are setting the course of their movement for decades to come.
Kaplan already is at work. Asked on Friday night what striking down DOMA’s federal marriage definition would mean, she responded, “It would mean that there would no longer be any such thing as second-class citizenship for gay married couples in our country — that all married couples, whether gay or straight, would be treated equally under the law, as our Constitution requires.”
By Independence Day, the justices likely will have told the nation if they agree.
[Correction: This story initially stated that an adverse ruling in the cases would “essentially [end] the fight over marriage equality for the foreseeable future.” Work at the state level would still be possible, however, so the portion now reads that an adverse ruling would “essentially [end] the chances of a national answer on the marriage equality question for the foreseeable future.”]