Politics

It’s On: Lawyers Fight For Supreme Court To Take Their Marriage Equality Case

The only question is whether the justices will agree to take on the issue — and, if so, which case or cases it’s going to be.

Gary Cameron / Reuters

WASHINGTON — Some of the top appellate lawyers and leading LGBT legal groups in the nation are squaring off in unusual filings at the Supreme Court this week asking the justices to hear their respective case about marriage equality.

Technically, the lawyers were responding to Supreme Court filings by state or county officials in Oklahoma, Virginia, and Utah that ask the justices to hear their case in order to uphold bans on same-sex couples’ marriages.

In reality, however, the lawyers are pointing out to the justices why their case — and not a case in another state — should be the case heard by the justices in the coming term that will begin in October.

Although the justices won’t consider whether to take any of the cases until, at the earliest, the end of September, the four filings this week showed how focused lawyers across the country supporting marriage equality are on getting a case — and, they hope, their case — before the justices in the next year.

The filings in cases challenging the bans on same-sex couples’ marriages in Oklahoma, Utah, and Virginia start from the unusual posture that all of the same-sex couples who filed lawsuits have won in the lower courts that heard their cases. Nonetheless, the importance of the issue has led all four legal teams — there are two in Virginia — to ask the Supreme Court to resolve the issue.

The filings share one thing: They argue that the justices should take a marriage case to resolve the issue, as the Virginia class-action plaintiffs put it, “so that the constitutional rights of same-sex couples in Virginia and elsewhere may be enforced without delay.”

Although all four filings agree on that point, the four teams differ on which case or cases to take and why. Each explains why their case is the best “vehicle” for resolving the question, focusing on the distinctions between the cases.

One distinction is whether the justices will hear a case only asking whether same-sex couples can marry or whether the case will also address bans on recognition of out-of-state marriages of same-sex couples.

The filings also differ on how the state government officials treat the bans: Do the justices want to hear a case in which the state is totally defending the ban or are the justices OK with hearing a case in which at least some government officials agree that the ban is unconstitutional, like in Virginia?

Additionally, at least one of the briefs raises the issue of the experience of the lawyers involved in the case with Supreme Court litigation about gay rights issues. Finally, there is a question of whether the court might take multiple cases — something explicitly recommended in some briefs.

Of course, the justices don’t need to take any of the cases, or they could hold them for a while, potentially into the next term, which wouldn’t begin until October 2015. The unified filings — from supporters and opponents of the various states’ bans — urging the court to take up the issue, however, suggest no one wants that.

So, what are the cases and lawyers?


In Oklahoma, local lawyers Don Holladay and James Warner of Holladay & Chilton and Joseph Thai, the lawyers behind Smith v. Bishop, have been joined by Jeffrey Fisher of Stanford Law School’s Supreme Court Litigation Clinic to push the justices to take their case on behalf of the same-sex couples who sued back in 2004.

In Virginia, two different groups once fighting with each other have now resolved (at least for the moment) to push together, albeit in separate filings. They are urging the Supreme Court to take their case, filed after the Supreme Court’s 2013 decision striking down the federal ban on recognition of same-sex couples’ marriages.

In the named case before the justices, Rainey v. Bostic, the local lawyers with Shuttleworth, Ruloff, Swain, Haddad & Morecock were soon thereafter joined by the American Foundation for Equal Rights and lawyers Ted Olson, who argued against California’s Proposition 8 at the Supreme Court, and David Boies with their respective teams at Gibson, Dunn & Crutcher and Boies, Schiller & Flexner.

The second set of Virginia plaintiffs, a class-action lawsuit challenging the ban, successfully intervened in the Bostic case on appeal. They are represented by lawyers from the ACLU and Lambda Legal, as well as Paul Smith, the Jenner & Block lawyer who successfully argued against sodomy laws at the Supreme Court in Lawrence v. Texas.

Finally, in Utah, an ever-growing team has been assembled to represent the same-sex couples who sued the state in Herbert v. Kitchen. Peggy Tomsic, whose firm of Magleby & Greenwood brought the suit, was joined by lawyers from the National Center for Lesbian Rights at the appellate level and by Neal Katyal, the former acting solicitor general at the Justice Department who is now at Hogan Lovells, and lawyers at Gay & Lesbian Advocates & Defenders.

In other words, a lot of lawyers are in on this — and they all want to be the ones who get to say their case was the one the ended the marriage bans across the nation.

So, what are the lawyers’ arguments for why their case is the one the justices should hear?

Oklahoma: Plaintiffs’ Lead Counsel - Jeffrey Fisher

The Oklahoma plaintiffs’ main argument for why their case should be taken is that their case is only about marriage itself — and not marriage recognition.

This is a particularly interesting argument because there initially was also a recognition claim in the Oklahoma case, but it was dismissed.

Even if the court wants to accept another case, the Oklahoma plaintiffs say the court should consider hearing multiple cases.

Virginia: Plaintiffs’ Lead Counsel - Theodore Olson

The opposite of the Oklahoma plaintiffs, the Olson-led team argues that the justices should hear the Virginia case because it would allow the court to resolve both the marriage issue and marriage recognition issue in one case.

They also claim that Virginia officials opposing the constitutionality of the ban is a benefit because “all sides” would be “vigorously” argued.

Virginia: Class Lead Counsel - Paul Smith

In addition to making similar points to those made by the Bostic plaintiffs, the class-action legal team in the Virginia case specifically notes the combined legal experience of the groups opposing Virginia’s ban — and that of those defending it.

Utah: Plaintiffs’ Lead Counsel - Peggy Tomsic

In addition to echoing the Virginia arguments about the Utah case being able to be used to resolve both marriage and marriage recognition cases, the Utah plaintiffs argue that their case is ideal because the state officials “vigorously” defend the ban.

This, they argue, makes the case more simple — specifically noting that there have been no parties who have joined the lawsuit after it was filed, called intervenors. Although not named, this is a distinction from the Virginia case.

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