News :: GLBT
Horserace to equality: Federal marriage lawsuits, Part II by Lisa Keen
contributing writerTuesday Jul 21, 2009 Mine That Bird beat 50-to-1 odds to win this year’s Kentucky Derby. The horse had never won on a dirt track, and the field that day was muddy. The key to the upset victory, according to knowledgeable horse enthusiasts, was the jockey’s strategy: Hang at the back of the pack until midway through the race, then ride the rail past everybody.
Lawsuits, too, have odds. A number of variables can affect a suit’s chances of success or failure: which court it is filed in, which judge is assigned to the case, the scope of the issue being challenged, what arguments the lawyers use, which lawyers have filed the lawsuit, and which lawyers oppose it.
For many years, gay legal activists have been picky about which lawsuits they enter into which courts. With a couple of notable exceptions, they have limited their lawsuits over the past 25 years to state courts in states where the overall climate for LGBT people is considered friendly, states such as Massachusetts, California and Connecticut. Generally, their thinking has been that conditions at the U.S. Supreme Court aren’t favorable for pro-gay suits.
But gay legal organizations do not control the field when it comes to gay-related lawsuits. Sometimes, other lawyers mount lawsuits; and sometimes other interested parties try to call the race over, done, and lost.
The true contenders
After much study and deliberation, Gay & Lesbian Advocates & Defenders (GLAD) this year mounted a legal challenge of the 13-year-old Defense of Marriage Act (DOMA) in federal court. The lawsuit is a very narrow, "very mainstream" challenge, notes lead attorney Mary Bonauto. It tackles part of one section of DOMA that applies to federal tax laws, Social Security and retirement laws, and other federal benefits available to married couples.
Why not challenge the entire law?
"The U.S. Supreme Court has made clear that it strongly disfavors attempts to strike a federal law in its entirety," notes GLAD on its website, "and prefers to evaluate cases with concrete examples of how a federal law as applied violates constitutional rights."
GLAD found eight couples and three individuals, all of who have applied for equal treatment under some federal benefit and have been denied. In March, GLAD put its lawsuit on track for the U.S. Supreme Court. They chose the U.S. District Court in Boston, part of the First Circuit U.S. Court of Appeals, one of the more progressive circuits in the country.
Most gay legal activists who have been working on equal rights for gays believe GLAD’s case, Gill et al v. Office of Personnel Management et al, which sports a legal team of 11 attorneys, has the best chance for success of the field of federal lawsuits seeking marriage equality for gay couples.
Jenny Pizer, head of the Marriage Project for Lambda Legal Defense and Education Fund, calls the Gill lawsuit "very strong. The Gill case was put together meticulously," explains Pizer. She says it hones in on "specific, serious, arbitrary harms to the plaintiffs," whose claims are "ripe for court consideration because all administrative and other preparatory steps have been taken."
By luck of the draw, the judge assigned to the Gill case is a 78-year-old Nixon appointee - which, on face value, seems tough. And it may be. But Judge Joseph Tauro is also known as "an activist judge, one who does not think that the law has only a passive role to play," according to one defense attorney who described the judge to the Boston Globe in 1989. "He is not afraid to fashion a remedy which breathes life into a constitutional right."
According to the Globe article, Tauro is a second-generation Italian who considers himself to be "very sensitive to bigotry" and "very empathetic with those who insist that they be treated equally, in terms of ethnic or racial background."
Tauro also has been assigned Massachusetts v. U.S., in which Massachusetts challenges the same section of DOMA as GLAD’s lawsuit. GLAD says there’s a good chance the two cases will be consolidated, though there are differences.
GLAD’s Bonauto said Gill "is grounded in equal protection," while the Massachusetts case focuses on a 10th Amendment and Spending Clause claim. The 10th Amendment says states have the power to regulate things "not delegated to the United States by the Constitution." The Spending Clause is more complicated and, argues Attorney General Martha Coakley, prevents the federal government from forcing the state to violate the constitutional rights of its citizens.
Lambda’s Pizer says the Massachusetts case is both an "incredibly important case and an immensely welcome development on the national landscape."
The case presents new legal arguments against DOMA’s Section 3, which limits the interpretation of marriage for federal purpose to heterosexual couples.
Evan Wolfson, head of the national Freedom to Marry group and one of the first attorneys to litigate a gay marriage case, says Gill and Massachusetts aren’t looking for a "one-shot, all-or-nothing" ruling about marriage equality nationwide. They seek to nudge the courts in the right direction by getting the courts to say states should be allowed to regulate marriage and treat all married couples equally, for instance, or that gay couples should be able to receive equal benefits. Such incremental rulings, he said, "would still hand us an enormous victory that would have positive effects nationwide."
The hobbled hazards
If ever there were a "one-shot, all-or-nothing" entry in this legal horserace, it would be Smelt v. U.S. It’s also a first of sorts.
Arthur Smelt and his spouse Christopher Hammer have already been to the U.S. Supreme Court. They filed a federal lawsuit in conservative Orange County, Calif., in 2004 after a county clerk denied them a marriage license. It did not have the support of gay legal groups and activists then, and it doesn’t now.
The couple’s private attorney, Richard Gilbert, appealed the 2004 Smelt case all the way to the U.S. Supreme Court, which, in 2006, declined, without comment, to review the appeal. This is a common action, especially when a case has not yet been fully discussed in the lower courts, as was the status of Smelt at the time. Gay legal activists were relieved because the district court judge had, without briefing, stated considerable deference to DOMA and even implicated the right of gay couples to form domestic partnerships.
In 2008, the couple married during California’s five-month era of marriage equality. When voters passed Proposition 8 banning same-sex marriage, Smelt and Hammer filed suit, this time in state court, challenging both the statewide ban and both sections of DOMA. Judge David Carter, of the U.S. District Court in Los Angeles, dismissed the part of the lawsuit against the state on July 16, noting that the couple is still married and thus, as a legal matter, has no standing to sue the state over its ban.
Very little is known about Judge Carter when it comes to gay-related cases. But he is a Clinton appointee, and has heard at least one gay case before. When Orange County schools tried to bar the organization of a gay-straight alliance in 2000, Carter issued a preliminary injunction that enabled the group to hold its meetings. (The school later settled with the group out of court.) These two things suggest he might give at least fair consideration to a same-sex marriage case.
The remainder of Smelt will proceed. Unlike Gill and Massachusetts, Smelt is anything but narrow. It asks the court to require "all necessary acts" be taken by "the entire nation of the United States of America, all of its territories and jurisdictions" to eliminate "any distinction in the law" that results in inequality for the plaintiff couple.
The brief, eight-page complaint filed by attorney Gilbert asks the court to declare DOMA in violation of the constitutional guarantees of equal protection, right to privacy, and due process, as well as its Full Faith and Credit Clause. It also asks the court to "order mandating the use of gender-neutral terms in all legislation affecting marriage." And, without explanation or context, it drops in a quote from former Vice President Dick Cheney: "Freedom means freedom for everyone."
A similarly hobbled lawsuit was filed in the federal district court of New Orleans by another gay male couple. Kristoffer Bonilla and John Wray, without the aid or blessing of any gay litigation group, tried to file their lawsuit in April, seeking permission to have the filing fees waived due to "pauper" status. Bonilla is a recent law school graduate. The court denied their request. They came back a month later and filed their seven-page lawsuit.
The case, Bonilla v. Levine, has been assigned to a judge appointed by former President George W. Bush, Kurt Engelhardt. Not much is known about the judge’s attitude towards gay civil rights, but the 5th Circuit U.S. Court of Appeals is one of the country’s more conservative circuits.
A conservative circuit does not necessarily spell doom. The 2003 Lawrence v. Texas ruling, striking down sodomy laws, came from the 5th Circuit. But gay legal activists at Lambda, GLAD, and Freedom to Marry have stated repeatedly that public education and the composition of courts are critical considerations when bringing a lawsuit seeking marriage equality.
"The best way to maximize the chances of winning a lawsuit is by creating the climate that enables judges to do their job -- and that means winning marriage in more states, telling more stories of our lives, building more public support, and doing the same kind of work needed to restore the freedom to marry at the ballot-box in California and advance in other states," says Freedom to Marry’s Wolfson. "There is no federal end-run around the nitty-gritty work of social change in a democratic society."
Part 3: In May, a flood of media attention followed the entry of a lawsuit seeking equal marriage rights, with one of the nation’s best-known conservative attorneys as litigator. The lawsuit filed by conservative Theodore Olson came as such a surprise that it prompted bloggers to speculate the conservative attorney might be trying to sabotage the momentum for same-sex marriage by bringing a premature lawsuit. Meanwhile, one well-positioned lifetime farmer has declared the legal race for same-sex marriage already decided.
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