February 17, 2014 | by Chris Johnson
Once again, marriage equality inches closer to Supreme Court
David Boies, Ted Olson, gay marriage, same-sex marriage, marriage equality, gay news, Washington Blade

David Boies and Ted Olson are leading the VIrginia lawsuit heading to the U.S. Supreme Court (Washington Blade photo by Michael Key).

Not even a year has passed since the U.S. Supreme Court issued its landmark decisions against the Defense of Marriage Act and California’s Proposition 8, but a number of cases are already lining up that would enable the high court to make a nationwide ruling in favor of marriage equality.

At least four appellate courts are set to consider the issue this spring amid five district court decisions in favor of marriage equality in Utah, Oklahoma, Ohio, Kentucky and Virginia. Once the appellate courts make their decisions, they will likely be appealed this year to the Supreme Court, which would give justices the opportunity to make a final decision in 2015.

Although the Ohio ruling was limited to death certificates for married gay couples and the Kentucky ruling only provided recognition of out-of-state same-sex marriages, each of the rulings handed down since the DOMA decision were in favor of marriage equality. And in each ruling, justices invoked the decision against DOMA as part of their reasoning for determining state constitutional amendments against same-sex marriage violated the Constitution.

U.S. District Judge John Heyburn, an appointee of former President George H.W. Bush, noted last week in his decision that the words of the DOMA decision by U.S. Associate Justice Anthony Kennedy compels him to rule against Kentucky’s marriage laws.

“Ultimately, the focus of the Court’s attention must be upon Justice Kennedy’s majority opinion in Windsor,” Heyburn said. “While Justice Kennedy did not address our specific issue, he did address many others closely related. His reasoning about the legitimacy of laws excluding recognition of same-sex marriages is instructive. For the reasons that follow, the Court concludes that Kentucky’s laws are unconstitutional.”

Ted Olson, the Republican half of the legal duo arguing against Virginia’s ban on same-sex marriage, during a conference call Friday noted the consistency with which district courts have struck down anti-gay marriage amendments in the aftermath of the DOMA decision.

“Federal courts are consistently, regularly now, affirming the right of gay and lesbian citizens to be a part of the population of the rest of our citizens with equal rights to the fundamental right of marriage,” Olson said.

The cases against same-sex marriage bans in Utah and Oklahoma are the furthest advanced of all the lawsuits seeking marriage equality. They’re before the U.S. Tenth Circuit Court of Appeals in Denver, where oral arguments are scheduled in Utah case for April 10 and the Oklahoma case for April 17. The National Center for Lesbian Rights has joined the law firm of Magleby & Greenwood, P.C., as counsel in the Utah case.

Just behind that lawsuit is the case seeking marriage equality in Nevada filed by Lambda Legal known as Sevcik v. Sandoval. After Nevada Attorney General Catherine Cortez Masto declared her intent to withdraw her brief in favor of the marriage ban, the U.S. Ninth Circuit Court of Appeals last week acceded to her request and pledged to proceed with the lawsuit on an expedited basis, although no date has been set for oral arguments.

The Ohio case has already been appealed to the U.S. Sixth Circuit Court of Appeals, which is also the destination of the Kentucky lawsuit. These cases are also in their early stages at the appellate level, and schedule hasn’t been determined.

And the court ruling against Virginia’s ban on same-sex marriage, the latest to come down from a federal court, will be headed to the U.S. Fourth Circuit of Appeals. Although Virginia Attorney General Mark Herring isn’t defending the ban against same-sex marriage in court, Olson said he sees no standing issue in the case and because county clerks are participating in the lawsuit, the state continues to enforce the law.

But according to Lambda Legal, a total of 52 marriage equality lawsuits are pending in 27 states, and any of the cases at district court level could soon join those at the appellate level.

A judge will likely render a decision soon in the other lawsuit seeking marriage equality in Virginia, which was filed by the American Civil Liberties Union and Lambda Legal. A judge in Michigan has set a trial for that state’s constitutional ban on same-sex marriage on Feb. 25, just as a trial has been set in the Pennsylvania case for June 9.

Given the sheer number of cases making their way through the courts, David Boies, the Democratic half of the legal duo in the Virginia lawsuit, said the Supreme Court would have no shortage of cases from which to choose by the time it begins its term in the fall.

“I think they will all get to the Supreme Court at about the same time,” Boies said. “The Supreme Court can decide to take them all and consolidate them, the Supreme Court can take one or more of the cases, but not all of then. I think that is something that will be determined by the Supreme Court, and, to some extent, by the timing of the court of appeals decision.”

It’s technically possible for the Supreme Court to take up this issue this term once those cases are appealed, which would mean a nationwide ruling by June.

Jon Davidson, legal director for Lambda Legal, nonetheless said it “seems extraordinarily unlikely” the litigation would play out in that way.

“Even if an appellate decision in one of these cases were issued by May, a certiorari petition likely would not get filed until the summer, and the Supreme Court wouldn’t act on that until October,” Davidson said. “It does not have to grant cert on the first, or, even any of these cases. Even if it does, there likely wouldn’t be a decision until the spring of 2015.”

One issue to watch as these cases make their way up is whether courts apply heightened scrutiny, or a greater assumption a law is unconstitutional, to their decisions on the marriage bans. Such a determination would designate gay people with a “quasi-suspect classification” and establish precedent making other laws related to sexual orientation less likely to stand up in court.

When it ruled on the DOMA case last year, the U.S. Second Circuit Court of Appeals already set a precedent for heightened scrutiny for laws related to sexual orientation, but every state in that jurisdiction — New York, Vermont and Connecticut — already has marriage equality.

More recently, the U.S. Ninth Circuit Court of Appeals applied heightened scrutiny in its decision for Smith Kline v. Abbott Laboratories, which determined that jurors cannot be excluded from a trial because of sexual orientation.

Because of the application of heightened scrutiny in that case, the Nevada attorney general stopped defending her state’s marriage ban. Further, expectations are high that courts in Oregon and Arizona, which lie within that jurisdiction, will strike down bans in those states.

It was speculated the Supreme Court took up the Edith Windsor’s challenge to DOMA as opposed to others because the Second Circuit applied heightened scrutiny on that decision, although the high court never explicitly addressed the issue of heightened scrutiny in its ultimate decision. Eyes will be on the Supreme Court to see if it will take up the Ninth Circuit marriage case among others to resolve the issue of heightened scrutiny in the next go-around with marriage equality.

Doug NeJaime, who’s gay and a law professor at University of California, Irvine, nonetheless said he doesn’t think the Supreme Court has interest in resolving this issue for laws related to sexual orientation.

“The Supreme Court in Windsor didn’t explicitly reach this question, even though the lower court had based its decision on heightened scrutiny,” NeJaime said. “Given that, it doesn’t seem the Court is particularly interested in resolving that question, and I don’t think it will do much to persuade the court to take or not take a case.”

Another question is the extent to which the Obama administration will participate in the pending lawsuits. The Justice Department helped litigate against DOMA as party in the lawsuit and assisted in the lawsuit against Prop 8 as a friend of the court, although in the latter case the administration filed a brief and took part in oral arguments only when the litigation reached the Supreme Court.

A number of LGBT advocates have said they’d welcome participation from the Obama administration in the marriage equality cases without making a full-throated call for assistance. On Friday, White House Press Secretary Jay Carney wouldn’t make a prediction on whether the administration will take part and deferred comment to the Justice Department, which hasn’t responded to the Blade’s request to comment.

The opportunity for the Justice Department to file a brief in the Nevada case before the Ninth Circuit has already passed, but another opportunity will come soon. The deadline for filing a friend-of-the-court brief before the Tenth Circuit in the Utah case is March 4.

Erik Olvera, spokesperson for the National Center for Lesbian Rights, echoed the sense of other advocates on the issue, saying a friend-of-the-court brief from the Obama administration would be “welcome” in the Utah case.

“We always welcome the Obama administration to express its views in cases concerning civil rights protected by the U.S. Constitution,” Olvera said.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

23 Comments
  • I can only say that these two Lawyers should not gloat at their winnings. It is NOT from their great Arguments but from the LACK of good Arguments from the other side. It is ONLY because the other side is incompetent that they can win. Even I could win over these two. Pity

  • LGBTs will forever recognize and hold David Boies and Ted Olson in high esteem as jurists whose efforts were integral to the advancement of Marriage Equality in our country and beyond.

    From one coast to another, their efforts in California and Virginia have already moved the issue profoundly. They will clearly be ready for the big dance too.

    We’re all in their debt.

  • Probably because there are NO good arguments for the other side. Every argument they have brought has been defeated simply by changing the target of who the argument would apply against.

    They are winning because the Constitution guarantees equal rights, privileges, and protections, without due process. There are no exceptions.

  • James Degenhardt In reality, the Gays have also weak arguments, but the other side, as I said even weaker. I definitely have much better that the whole lot. I would use the Constitution to win it, easily. Pity

  • Kenny Claing In reality, gays have the 1st, 4th, 9th, and 14th Amendments, Loving v Virginia, Lawrence v Texas, and US v Windsor on their side.

    But, let's test it. Let's hear your arguments.

  • You are an idiot.

  • Laura Olson Name-calling gets us no where.

  • James Degenhardt My argument are in the 1st, 4th, 9th, and the 14th, Loving v. Virginia, Lawrence v. Texas, and the Windsor case. All on my side. Pity

  • James Degenhardt There are those and many others to choose from. You do know that you haven't explained your side except to cite some names and numbers. That's why I did the same. In essence your side is the Constitution says so, that's why. Even though it does not specifically says so, your argument is that it does. One could say, very convenient no need to explain the Constitution says it all. But you want me to explain what you won't. It is normal for the one asking for the right, to do all the explaining to justify their position. Not the other way around. Let me hear your specific arguments to justify your claims. Then I can give mine. Pity

  • Kenny Claing Actually, Kenny, you started off saying that there arguments were week, and that you could do better, so I challenged you to do so. I'll stand with their arguments.

    Now, put up or shut up.

  • James Degenhardt Your stance is the typical response. When they ask you a question, do not answer the question, divert it by asking a question in return. But I don't mind, I know you don't have any answer, and waiting for it is like forever. I'll give this argument: Gays only make a "claim" that they are Gay. They cannot Prove it though. They are able to hide from everyone for YEARS what they "claim" that they were 'born' with. They even have to "tell" their Parents that they are Gay. It is an unknown in the person that "claims" it.. They cannot be picked out in a crowd, period. Why do they have to come "out" if it CAN be known? Pity

  • Kenny Claing "Your stance is the typical response. When they ask you a question, do not answer the question, divert it by asking a question in return. But I don't mind, I know you don't have any answer, and waiting for it is like forever."

    Funny, since that what you did.

    Ok. Something to work with finally. You are asserting that gays choose to be so. To which I counter: so what ? Religion is a lifestyle choice, and protected by the Constitution. Marriage itself is a choice, and protected by the Constitution.

    Is there any other LEGAL lifestyle choice, even those of questionable morality, for which the choosing to follow leads to the denial of equal rights ? The answer is no.

    If being gay is genetic, then same-sex marriage would be protected by the 14th Amendment. If it's a choice, then it would be protected by the 14th, 1st, and 4th Amendments.

    "Why do they have to come 'out' if it CAN be known?" Because of the bullying culture we have built up. They need to hide who they are to avoid being bullies by fellow students, and sometimes by family, especially in religious environments.

  • Now that you finally stepped up, here's my arguments:

    1) Some argue that marriage should be between a man and a woman because that's how children are made. This is a false argument for two reasons. First, one does not need to be married to have children. Second, one does not need to have children to be married.

    2) Some argue religious grounds. These are easily thrown out by the very fact that some religions oppose homosexuality, and some embrace it. Per the 1st Amendment, government cannot show preferential treatment to one faigh over another.

    3) Here's the kicker. In order to legally define marriage as being between "one man and one woman," you must also establish a legal definition for the words "man" and "woman." And then, you must decide why those born outside of those definitions should be denied the right to marry.

    Let's say, the terms are defined by genetics. A man is XY, and a woman is XX. Then what is a person with Klinefelter's Syndrome, since they are XXY ?

    Any other method is easily thrown out by the simple fact that there are THREE genders, not just two.

    Per the American Medical Association, 1 in 1000 children are born as natural hermaphrodites, or Intersex. This means that they have both male AND female anatomy. And hospitals are marking the birth certificates with "I" for Intersex.

    Is there a valid, Constitutional reason why these people should not marry ?? The answer, of course, is no.

    Yes, you could make exceptions to the law for these people. But then, you are also violating the Constitution by granting some people SPECIAL rights based on the randomness of birth.

    4) One common argument is that gays already have equal rights, because they already have the right to marry, it just has to be to someone of the opposite gender. This argument fails through two facts.

    One is the above argument, in which some people have no "opposite" gender.

    The other is the legal precedent established by Loving v Virgina. Interracial marriage ban laws, they argued, were also Constitutional, because it applies to all races equally, and said that no one could marry outside of their race. Aside from being shot down by SCOTUS because of Freedom of Choice, and Due Process, such laws were also overturned on the basis that it would deny marriage to a person born of mixed ethnic heritage.

  • James Degenhardt You run around the issue. I say that one cannot hide what they were "born" with, and you dismiss it to say that they are bullied so they hide. What does anything has to do with concealing something that they claim. If it can be hidden, what should be obvious, it is non-existent. It is basically a fraud. You are twisting and misusing the word Marriage. This word confuses and misdirect you. You are blinded by this word that you can alter. The word is a beautiful word but it can be manipulated by people with an agenda for themselves which you do. There are other words that cannot be altered by deviants. Your last one is a "kicker", there is only a Male and Female on our Planet. What is this 'other' born differently. There are no 'others' to be denied.

  • Kenny Claing Ok. The issue of "hiding" is irrelevent as it relates to this point of Constitutional Law. It doesn't matter.

    The word "marriage" refers to a legal contract entered in to by consenting adults. There is not in either civil rights nor contractual law that allows the State to decide which consenting adults can sign a contract.

    Deviants is a word that also has no meaning in the eyes of the Constitution. People used to say that black men who wanted to marry white women were deviants, and would destroy the beauty of marriage. Didn't happen.

    As for the "kicker," There are THREE genders. Not two. If a person has both a penis and a vagina, what are they, if there are only two genders ? If a person fathers one child, and gives birth to another, are they man or woman ? The answer is NEITHER.

    And no, you cannot grant them the right to choose which box the check on the license, because that would be granting special rights to a group of people based on the randomness of birth.

    I await your response.

  • James Degenhardt You are saying that freaks in a circus are a different Gender from a Male and Female. The Person you mentioned has ONLY a Male and/or Female organs. They do NOT have a third Gender organ, only Male or Female. What do you call "that" third Gender? And is it in the Constitution? Do these so called "third" Gender, populate Mankind? If they give birth as you say, are they then a "forth" Gender? Where did you come from? That "third" Gender? Pity

  • Kenny Claing To use your own words, "When they ask you a question, do not answer the question, divert it by asking a question in return. But I don't mind, I know you don't have any answer, and waiting for it is like forever."

    The question was, is such a person to be called, legally, a man or a woman ? Which box must they check on a marriage license ?

    And yes, the world is starting to recognize these people for what they are, a third gender. It's called Intersex. Look it up.

  • James Degenhardt I did look it up and you are wrong. An individual displaying both male and female SEXUAL characteristics. This has nothing to do with Gender. Characteristics is not Gender. Displaying something is NOT displaying Gender. Intersex is NOT a Gender. Please consult and expert. You really can't read straight. I answered your Question first. Then I asked you to explain what you claim. That is why you came up with this Intersex thing. Legally, one is the Gender that they were born with and so indicated on their birth certificate, unless they have legally made a Sex change operation. It is still one or the other. They do NOT change into an intersex. Go check at a Marriage License bureau. Pity

  • Kenny Claing Ok, well, since hospitals are starting to mark birth certificates with either I for Intersex, or H for Natural Hermaphrodite, that argument does not work. Legally, they are not male, and not female. Biologically, they are not male, and not female.

    As for the marriage license bureau, I checked. Wisconsin defines marriage as between a man and a woman as indicated on the birth certificate. If the gender box contains anything but an M or F, that individual is not allowed to be married within this State.

    Now, you still have NOT answered my question.

    Your arguments have been defeated. Now you're just spewing false information because you can't accept that the law and Nature's Will is against you.

    Either answer the question, or give it up.

  • James Degenhardt I was away Yesterday. You don't make any sense. You have just confirmed that it is only Male and Female that is accepted. What part don't you understand, you said it yourself. When a person is either a Male and Female, in many cases, If that Person has Female plumbing, it can biologically have a Child. How can you say they are not one or the other? Natures' Law is against Homosexuality. Otherwise YOU would not be here. What part again don't you understand? Pity

  • Kenny Claing Yes, male and female is what's currently accepted. But that limitation is Unconstitutional, because it ignores people who are NEITHER.

    As for Nature's law, nature SUPPORTS homosexuality, or else it would not exist. It exists in nearly every species on earth. Or are you advocating that animals can make a conscious choice to be gay ?

    Now, last time, quit acting like a conservative troll, and answer the question.

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