Amid celebration over the Supreme Court rulings against the Defense of Marriage Act and California’s Proposition 8, plans are already in place to extend the victories further as the Human Rights Campaign has pledged to win marriage equality in all 50 states within five years.
Following the announcement of that goal, which was made by HRC President Chad Griffin on the steps of the Supreme Court immediately after the decisions, state advocates as well as other national groups are engaged in plans to bring marriage equality to the 37 states where gay couples are still unable to wed.
Speaking with the Washington Blade at the court after he made the pledge, Griffin said achieving that goal would involve a combination of several routes, including additional litigation.
“It will take legislative work, it will take ballot work, it will take Congress and it will ultimately take the federal courts again to bring full equality to every single corner of this country,” Griffin said. “But there is no ground we will leave unturned. Today we will fight aggressively on all fronts in all states.”
Griffin said he’s basing the timeline for his plan on the length of time it took to overturn Prop 8, which took five years from the time Prop 8 passed at the ballot in 2008.
There are already new lawsuits in the works in the wake of the rulings that struck down DOMA, the anti-gay law prohibiting federal recognition of same-sex marriage, and Prop 8. Although many hoped the latter case would be the one to bring marriage equality to all 50 states, the ruling instead that came down was limited in scope to California.
Jon Davidson, legal director of Lambda Legal, told the Blade his group is planning new lawsuits to advance marriage equality, but isn’t yet ready to talk details.
“We do have plans to file additional marriage cases in federal court, and are preparing those now,” Davidson said. “We are not in a position to share which states at the moment.”
Appearing on CNN on Sunday, David Boies, one half of the legal dream team hired by the American Foundation for Equal Rights that successfully led the lawsuit against Prop 8, said, “there isn’t any state we’re giving up on” and suggested new litigation is coming.
“Our goal is to have marriage equality that’s guaranteed by the U.S. Constitution, enforced in every single state in the union,” Boies said.
But Davidson also cautioned gay couples against filing additional lawsuits because of the time and cost involved as well as whether the litigation is strategically appropriate.
“The Perry case, for example, cost each side several million dollars to litigate,” Davidson said. “Often, numerous expert witnesses are required. And, if brought in the wrong place, at the wrong time or without adequate preparation, suits can set back our community’s progress by creating bad precedent that could create barriers to equality nationwide.”
Some are skeptical about HRC’s timetable. Among them is Larry Sabato, a political scientist at the University of Virginia, who said meeting that goal is “completely unrealistic.”
“I cannot imagine same-sex marriage passing in my lifetime (plus a couple decades or more) in many southern and border states, plus some of the Rocky Mountain and Midwest states,” Sabato said. “Any state with a decent-sized GOP majority in at least one state legislative house will be enough to kill the effort. Only a handful of states have the citizen-sponsored ballot initiative option.”
Sabato said another lawsuit akin to the 1967 case of Loving v. Virginia would be the best route to achieve nationwide marriage equality — but seeing that come to fruition in five years is doubtful.
“That is a completely unrealistic schedule, given the obstacles in the states,” Sabato said. “And I doubt the Supreme Court will take up another major marriage case that quickly.”
Meanwhile, several lawsuits are already pending that have the potential to not only extend marriage equality in certain states, but advance to the Supreme Court for an ultimate resolution extending same-sex marriage nationwide.
The most high-profile among them is the challenge to Nevada’s constitutional ban on same-sex marriage, Sevcik v. Sandova, which was filed by Lambda Legal and is pending before the U.S. Ninth Circuit Court of Appeals. That case is on a parallel track with Jackson v. Abercombie, a challenge to Hawaii’s ban on same-sex marriage that was filed by private attorneys.
Judges placed a stay on the cases as the more advanced DOMA and Prop 8 cases were proceeding through the judiciary, but that stay is slated to expire on July 18.
Davidson had an ambitious outlook for the timeline for the Nevada case and said it’s teed up to potentially be the next to reach the Supreme Court.
“We will be filing our appellate brief with the Ninth Circuit in September,” Davidson said. “We expect to argue the case to that appellate court sometime in 2014 and possibly have that case in front of the Supreme Court in 2015.”
Also, as Buzzfeed reported, a U.S. district court in Michigan ruled on Monday to let a federal challenge to the state constitutional ban on same-sex marriage proceed in the wake of the Supreme Court’s decision against DOMA. That challenge will be interesting to watch because the Sixth Circuit has a reputation for being a conservative court.
Eyes on legislation in Illinois, New Jersey
But the best prospects for advancing marriage equality remain in the legislative arena as advocates in two states — Illinois and New Jersey — work to muster enough votes to pass bills that would legalize gay nuptials.
In Illinois, supporters of same-sex marriage are hoping the extension of the legislative session to Aug. 31 will permit them enough time to build support after gay State Rep. Greg Harris didn’t bring the bill to a vote because he didn’t think the measure had enough support.
Bernard Cherkasov, CEO of Equality Illinois, told the Blade he’s hoping the extension of the House session will provide enough time for a successful vote on the bill sometime this fall.
“The bill has been granted an extension in the House through Aug. 31, with the possibility of further extensions, if needed,” Cherkasov said. ”We hope that the bill will pass the full House vote during the ‘veto session’ which is scheduled to take place this fall.”
In New Jersey, lawmakers are working to build support to override Republican Gov. Chris Christie’s veto of marriage equality legislation in the wake of his comments calling the Supreme Court’s decision against DOMA “incredibly insulting” and “another example of judicial supremacy.”
Calling Christie’s remarks “insulting,” State Sen. Barbara Buono, the Democratic gubernatorial candidate challenging Christie in the upcoming election, told the Washington Blade on Friday she thinks the override is just a few votes short in the Senate.
“This governor has to release the Republicans in the Senate and the Assembly,” Buono said. “I think that we could easily get an override if he would release them. These are people who live in fear of retribution and retaliation of this governor. If the governor would release them, we would have an override easily in the Senate; all we need are three votes.”
But should the override be unsuccessful, Buono said she’ll make marriage equality in New Jersey a campaign issue and pledge to make a marriage equality bill the first one that she signs if elected.
In both Illinois and New Jersey, litigation is pending before state courts to advance marriage equality should legislative efforts fail. Another Lambda lawsuit, Darby v. Orr, is pending before the Circuit Court of Cook County. In New Jersey, Lambda is expected to file on Wednesday a motion for summary judgment in its state case, Garden State Equality v. Dow, which also includes a federal equal protection claim.
Yet another lawsuit in New Mexico state court pursuing marriage equality was filed by the American Civil Liberties Union and the National Center for Lesbian Rights.
The case, which is pending before Albuquerque’s district court, was filed after city officials in Santa Fe issued guidance saying the state already has marriage equality because the statute governing marriage in the state is gender neutral. In response, New Mexico Attorney General Gary King said the statute is “vulnerable to challenge.”
Oregon activists seek 2014 ballot initiative
Ballot initiatives are also expected to advance marriage equality in more states as the nation prepares for mid-term elections. The foremost among those is the planned ballot initiative in Oregon to win marriage equality in the state in 2014.
Peter Zuckerman, media manager for Basic Rights Oregon, said the official date to start the necessary 116,284 signatures to place the initiative on the ballot is happening later this month.
“On July 20 we launch the campaign to collect the 116,284 signatures, which is the next step to qualify for the ballot,” Zuckerman said. “If all goes as planned, Oregonians will vote for the freedom to marry in November 2014.”
If Oregon LGBT activists win at the ballot, their efforts would institute marriage equality by reversing a state constitutional amendment that Oregon voters approved in 2004.
Meanwhile, in Nevada, the state assembly in May approved an amendment that would undo the state’s constitutional ban on same-sex marriage. The process to ratify amendments in the state requires the measure to pass in two consecutive state legislatures and at the ballot during the next election.
To assist in repealing these bans and other barriers to marriage equality, the ACLU announced last week it hired Republican strategist Steve Schmidt, a supporter of marriage equality who signed the friend-of-the-court brief against Prop 8, and former GOProud executive director Jimmy LaSalvia as part of a nationwide campaign. The ACLU has pledged to spend $10 million through 2016 as part of this effort.
LaSalvia told the Blade many states are conservative leaning, which will require supporters of marriage equality to undertake an extra effort to work with conservatives to achieve success.
“Conservatives know that marriage is a good thing, and we should encourage, protect, and promote it for everyone including gay people,” LaSalvia said. “I am looking forward to working with the ACLU to make that case, state by state, to build consensus through the political process to legalize civil marriage for gay couples.”
Plans in other states are also underway to extend marriage equality in the wake of the Supreme Court decisions last week.
• Arizona — The new group Equal Marriage Arizona is seeking to collect 400,000 signatures to place an amendment on the 2014 ballot reversing the constitutional ban on same-sex marriage that voters put in place in 2008.
• Pennsylvania — Last week, gay State Rep. Brian Sims announced that he plans to introduce legislation that would institute marriage equality and has begun to seek additional co-sponsors for the measure. Passing the bill will be difficult because Republicans control the governor’s mansion and the Senate in Pennsylvania.
• Colorado — In the state where Gov. John Hickenlooper (D) recently signed into law a measure to legalize civil unions, efforts are underway to extend full marriage equality. Colorado House Speaker Mark Ferrandino, who’s gay, said statewide LGBT rights groups are building a coalition to repeal the ban on same-sex marriage and expecting a ballot initiative before the end of the decade.
• Ohio — National LGBT groups and local activists held a meeting last month to discuss bringing an initiative to the ballot to reverse the state’s constitutional ban on same-sex marriage. One group, Freedom Ohio, said the plan is to take the initiative to the ballot in 2014, although the groups insisted a firm date hasn’t yet been set.