By Lisa Keen
It’s been one of those behind-the-scenes disputes in the gay legal movement for a long time, but now the ferocity of the battle over equal marriage rights has dragged it into public view: Who has the right to pick the movement’s fights?
Should any LGBT individual with the money and guts to file a lawsuit do so, in hopes of securing equal rights for her/himself and potentially others? Or should the movement encourage people to set aside their personal needs and let just the longstanding organizations with experienced civil rights attorneys and the support of thousands of gay members choose which battles can be won and when?
Over the years, many same-sex couples have been poised to file lawsuits seeking equal rights to marriage, but most have been persuaded to withhold or withdraw their lawsuits for strategic reasons. Evan Wolfson, executive director of the national Freedom to Marry organization and one of the first attorneys to ever argue a gay marriage case, says, “Most people understand the need to be strategic, collaborative, and thoughtful.”
These couples and their attorneys rarely grumble publicly about being asked to hold off. But in California this year, one couple and their attorney did grumble and the conflict spilled onto the pages of the mainstream media, prompting gay legal activists to take the equally rare tact of voicing their opposition.
The verbal sparring erupted around Smelt v. Orange County, a lawsuit filed in federal court by a gay couple denied a marriage license in one of the nation’s most conservative counties. Arthur Smelt and Christopher Hammer, both 46, have been together for nine years, have exchanged wedding rings, and participated in a wedding ceremony. In January 2000, they obtained a state-issued declaration of domestic partnership, and in February 2004, applied for a marriage license. The Orange County clerk denied them the marriage license because they are both male. The couple tried again a week later, and again was denied.
David versus domino
The couple’s attorney, Richard C. Gilbert, seeks to defeat the Goliath of opposition to same-sex marriage with a simple David line of attack: a shock-and-awe lawsuit to knock down the giant of inequity in federal court. But gay legal strategists believe a gay marriage case in federal court is another Bowers v. Hardwick waiting to happen. They prefer the domino approach: win one state, then another, then another, until the felling of barriers to same-sex marriage picks up a self-sustaining momentum. Massachusetts has been won and important decisions are pending in at least seven other states.
Both sides believe they have the winning strategy and both have become increasingly vocal about their criticism of the other. Gilbert, a private practice attorney who is not gay, says the gay male couple he represents has been wronged and should show no patience with the injustice of being denied a marriage license. He is incredulous that gay legal groups have asked him not to pursue the litigation.
“Would Martin Luther King have asked Rosa Parks not to sit at the front of the bus?” asked Gilbert in a phone interview from his office in Santa Ana. “It’s crazy!”
Jessie Olson, an attorney in Michigan, said she was persuaded to withdraw a lawsuit she and her partner filed against the Michigan constitutional ban on same-sex marriage, but she didn’t like the strong-arm nature of that persuasion and may exercise an option to re-file her lawsuit if that of the national groups fails.
The national gay litigation groups have a marriage case in federal court – one challenging Nebraska’s voter-passed constitutional amendment banning same-sex marriage or legal recognition for any other form of same-sex relationship. That case, unlike Smelt, won at the district court level. It was argued before a three-judge panel of the 8th Circuit U.S. Court of Appeals in February and a decision is now pending. But that lawsuit, explains Jon Davidson, legal director of Lambda Legal Defense and Education Fund, is not a marriage case.
“It does not ask for a ruling that a state must allow same-sex couples to marry and a victory in the case will not result in that,” says Davidson. Instead, it challenges the constitutionality of the initiative on other legal grounds. Specifically, it cites the U.S. Supreme Court ruling in Romer v. Evans against Colorado’s anti-gay Amendment 2, and says the Nebraska ballot measure, like the one in Colorado, was trying to prevent gays from petitioning the legislature to address their needs.
“Because a victory in the Nebraska case would simply allow Nebraskans to seek protections from their legislators and other representatives in the government, it is a very different case from one that has a court requiring that marriage be provided,” says Davidson. “We think the extreme nature of the Nebraska constitutional amendment… makes it a much easier case for the Supreme Court to decide in our favor, and therefore a far less risky case, than one that asks the Supreme Court to require all states in the country to allow same-sex couples to marry.” A marriage lawsuit, he said, should come only after a “number of states” are recognizing same-sex marriage “with no ill effects, and with the country being given enough time to see that.”
Fighting for hearts, then judges
Gay legal activists, who have been immersed in the fight for equal rights for gays for many years, say that erasing legal inequities requires winning not just the legal arguments in court but the hearts and minds of people in society.
“Wanting equal choice regarding marriage does not in itself validate every couple’s rushing out today to file a lawsuit heedless of the realities where they live,” wrote Wolfson in one of many law review articles. “Bringing the wrong suit in the wrong way, even for the right objective, could do serious injury not only to our right to marry, but also to the broader range of lesbian and gay rights. The wrong case, wrong judge, or wrong forum could literally set us all back years, if not decades.”
Gilbert, a Republican, a member of the conservative Federalist Society, and a former president of the Orange County ACLU, says gay legal activists are too timid and their cautious strategy is allowing opponents to enshrine their hate in constitutional amendments to ban same-sex marriage, federally and state by state. Gay activists say Gilbert’s premature, shoot-from-the-hip lawsuit could leave the gay civil rights movement vulnerable to a Bowers v. Hardwick type decision from the U.S. Supreme Court.
In that 1986 decision, the high court ruled against a gay man challenging state sodomy laws and produced a decision that was used to justify widespread discrimination against gays for 17 years. Some legal activists were against pursuing the sodomy case at the time, feeling the composition of the Supreme Court was stacked against a victory. When a 5 to 4 majority upheld the sodomy laws, legal activists felt an important lesson had been driven home: Don’t take a test case into hostile territory. It wasn’t until 2003 that Lambda Legal Defense and Education Fund felt the climate was right to revisit the issue at the Supreme Court. And, in Lawrence v. Texas, it won a landmark ruling that struck down sodomy laws and had widespread benefits to the civil rights movement.
Now, in 2006, the Supreme Court has lost a moderate – Sandra Day O’Connor – who has been replaced by a fan of Focus on the Family’s James Dobson – Sam Alito. And early indications suggest the new Chief Justice John Roberts Jr. will be at least as conservative as the man he replaced, William Rehnquist. The head count for any gay-related case before the high court these days is, at best, very iffy.
Falling on the sword
In many ways, Gilbert’s lawsuit on behalf of Smelt and Hammer fits a mold created by gay legal activists. It makes many of the same legal arguments that gay legal groups are making in their own lawsuits around the country, and it’s a case filed in a liberal state and a liberal federal circuit. But it was also filed in one of the most conservative counties in the country – Orange County – in the staunchly conservative district that has produced such anti-gay politicos as former U.S. Reps. William Dannemeyer and Bob Dornan. And the federal judge who got the case at the district court level (an appointee of George H.W. Bush) issued a troublesome decision last June.
In that decision, Judge Gary L. Taylor upheld the constitutionality of the federal Defense of Marriage Act and, in so doing, Taylor noted that Smelt and Hammer had indicated they were registered with the state as domestic partners. That domestic partnership, said Taylor, amounts to a “legal union” and, therefore, should also be denied federal recognition under DOMA.
“That was quite alarming,” said Jennifer Pizer, senior counsel for Lambda’s western regional office in Los Angeles. “DOMA doesn’t have anything to do with domestic partnerships. He’s giving [DOMA] way too much scope and the issue’s not even been briefed. And it will probably have implications throughout the country.”
Gilbert appealed the decision to a three-judge panel of the 9th Circuit U.S. Court of Appeals, which heard arguments barely a month ago before issuing its opinion last week. Fortunately for gay legal activists, the panel noted that Smelt and Hammer had subsequently dissolved their domestic partnership and said, even if they had not, the domestic partnership is “not by any means a marriage” and, therefore, of no relevance to DOMA. It sent the case back to the district court with instructions to dismiss it.
Gilbert said Monday that he has not yet heard from his clients as to whether they wish to appeal but that their earlier indications suggested they planned to appeal all the way to the U.S. Supreme Court – a game plan they shared with the media.
Gay legal activists have concentrated their efforts in state courts, where individual state constitutions often provide for greater civil rights protections than the U.S. Constitution and where state supreme courts are often more friendly. That’s the strategy they’re using in the fight for equal marriage rights. One group, Gay & Lesbian Advocates & Defenders, has won the right in Massachusetts. Lambda has lawsuits pending before the state supreme courts in New York and New Jersey. Lambda, the ACLU, and the Northwest Women’s Law Center have a case awaiting a decision from the Washington Supreme Court. Lambda has recently filed suit in Iowa, the ACLU has a case in Maryland, and GLAD and the ACLU have a case pending in Connecticut.
The national ACLU Gay and Lesbian Rights Project, Lambda Legal Defense and Education Fund, the National Center for Lesbian Rights, GLAD, and the Freedom to Marry group all believe Smelt v. Orange County has the potential to do real harm to the effort to secure equal marriage rights for gays.
“You don’t advance anyone’s civil rights by bringing test cases you are likely to lose,” says Matt Coles, executive director of the ACLU’s National Lesbian and Gay Rights Project.
“Everybody agrees that federal litigation around marriage is not the greatest idea right now,” says Gary Buseck, legal director for GLAD.
That’s because, even if California and the 9th Circuit are liberal, says Lambda’s Pizer, the U.S. Supreme Court is not and that’s where a case will ultimately be decided. And conservatives in the U.S. Congress are just bucking to get an amendment to the U.S. Constitution to ban gay marriage nationally. If a federal court rules that DOMA is unconstitutional or that the U.S. Constitution protects a right for same-sex couples to marry, support for a federal constitutional amendment will quickly swell. If an amendment to the U.S. constitution is successful, says Pizer, “then we know we won’t have success in our lifetime.”
“We have to take very seriously our responsibility as a community to be adequately patient,” says Pizer, “because this issue is profound – it goes to the core of the discrimination we face – who we love and how we create families.
Searching for Braveheart?
Gilbert says Lambda’s “got no strategy at all.”
“Their strategy for a civil rights organization seems to be ‘Don’t fight,'” he says, noting that Lambda actively sought to have the federal appeals court in his case dismiss it. He says Lambda tried to talk the city of San Francisco out of pressing its gay marriage lawsuit, that it filed a brief in his case asking the court not to hear it, and that it has talked lawyers in other states from pursuing their litigation on behalf of gay couples who want to marry.
“The problem” with that strategy, says Gilbert, “is that people’s rights are being violated right now.” Maybe his lawsuit will be unsuccessful, says Gilbert, “but losing can often mean winning.”
“It can advance the cause a lot” by bringing the injustice to the attention of the public, says Gilbert. “But if everybody keeps walking away from the issue, you can’t call that a strategy.”
Pizer acknowledges that Lambda has filed some briefs suggesting the federal court abstain from ruling on Smelt v. Orange County but calls Gilbert’s claim that the group has no strategy “laughable.”
“Lambda and other LGBT organizations have been working night and day for years to secure legal rights for LGBT people and their families. It’s our core mission,” said Pizer, “and we’re doing it as strategically and vigorously as we’re capable of. But our experience has taught us a most basic lesson: that a win with impact litigation brings us forward and a loss sets us back.”
Sure, there’s a public education benefit with a lawsuit even if it is unsuccessful, says Pizer, “but our goal is not to just score symbolic points. Our goal is to win.”
“Right now, the odds on winning a marriage case at the U.S. Supreme Court are not very good,” says the ACLU’s Matt Cole. “They would be much stronger if we had won the right already in a significant number of states. This was true with segregation, with women’s rights, with interracial marriage. If we go to the Supreme Court and lose, it will take us longer to make the progress we need. People should remember that the 1896 U.S. Supreme Court case that upheld segregation was a test case. It took 58 years to begin undoing that mistake.”
The 1896 case was Plessy v. Ferguson, in which the Supreme Court ruled that a Louisiana law requiring segregation of whites and blacks on trains was constitutional. With the Brown v. Board of Education cases in 1954, the Supreme Court ruled that the “separate but equal” doctrine from Plessy “has no place in the field of public education.”
Pizer recalls that when the Hardwick challenge to sodomy statutes was taken to the Supreme Court in 1986, about half the states had repealed their own laws prohibiting sodomy but the Supreme Court still wasn’t ready to remedy that discrimination.
“A lot of very experienced people thought the timing was reasonable then,” recalls Pizer, but it wasn’t, and the resulting decision to uphold sodomy laws “was used against the gay community in a lot of other contexts for years.”
“At this point, we have marriage in only one state. We’re still at the beginning.”
A long, long beginning
Yes and no. The movement won its first marriage victory only a few years ago – with the Massachusetts Supreme Judicial Court ruling in November 2003. Gay & Lesbian Advocates & Defenders, a New England gay litigation group, led the case. The lawsuit, Goodridge v. Department of Public Health on behalf of seven couples, argued that the state constitution’s promise of equal protection should include equal marriage rights for same-sex and heterosexual couples.
Shortly after that victory, GLAD, Lambda, the ACLU, and other groups launched similar lawsuits in other states – Connecticut, Maryland, New York, New Jersey, Washington, and most recently Iowa. Each case presses for equal marriage rights based on the state constitution and each includes between four and eight couples as plaintiffs. Another fairly recent case, Woo v. Lockyer in California, is a consolidation of six lawsuits challenging state laws that prohibit same-sex marriage.
But the fight for equal marriage rights did not begin three years ago. Nor did it begin in 1999, when GLAD and local gay activist attorneys pressed for equal marriage rights in Vermont and won “civil unions.” Nor did it begin with the Hawaii case brought by several couples in 1991. That lawsuit succeeded in court only to have the legislature amend the constitution to essentially ban same-sex marriages there.
The first legal battle for equal marriage rights came 36 years ago, on the heels of the Stonewall Rebellion in 1969 and the U.S. Supreme Court decision striking laws against interracial marriage in 1967.
On May 18, 1970, a gay couple in Minnesota sought a marriage license. Four days later, they received a letter from the Hennepin County Attorney telling them that “sufficient legal impediment lies thereto prohibiting the marriage of two male persons.”
The couple’s attorney filed a lawsuit, Baker v. Nelson, and appealed to the Minnesota Supreme Court and then to the U.S. Supreme Court, noting that no one ever identified what that “legal impediment” was. The lawsuit used many of the same arguments that are being used today by national gay legal groups seeking equal marriage rights for same-sex couples. But the sum total of that lawsuit was a swift dismissal by the nation’s highest court with no explanation beyond “want of a substantial federal question.”
(Two other gay couples filed lawsuits in the early 1970s seeking the right to marry – a lesbian couple in Kentucky and a gay male couple in Washington state. In Jones v. Hallahan, the lesbian couple took its appeal to the state appeals court of Kentucky and was told, in 1973, that they were “incapable of achieving” marriage. Ditto, ruled a Washington state appeals court in Singer v. Hara in 1974.)
A gay couple seeking a marriage license in the months after the 1969 Stonewall Rebellion is different than gay couples seeking marriage licenses today. In the early 1970s, no openly gay couple had received a marriage license in any state; while today, thousands have received them in Massachusetts and Canada. That reality alone sets the stage for a conflict-between-the-courts type of petition to the Supreme Court – a type of conflict the nation’s highest court is more likely inclined to settle.
But equally interesting – and more troublesome – is how the U.S. Supreme Court’s disposition of the Baker v. Nelson case in 1972 may be coming back to haunt the movement these many years later.
In a one-sentence statement, on Oct. 10, 1972, the Supreme Court said the gay couple’s appeal of their lawsuit from the Minnesota Supreme Court was being “dismissed for want of a substantial federal question.” Nowadays, when the Supreme Court declines a case because it poses no substantial federal question, it simply “denies cert” – a shorthand term meaning it is saying no to a petition requesting that the high court review a lower court’s decision in a case. Although such denials do allow the lower court decision to stand, they are not considered an indication of the Supreme Court’s feelings about the lower court decision.
But in the early 1970s, a “dismissal for want of a substantial federal question” was considered to be a signal from the court. As U.S. District Judge Taylor said in his June 2005 decision against the gay couple in Smelt v. Orange County, the Supreme Court’s “dismissal for want of a substantial federal question” in Baker v. Nelson “is a decision on the merits that is binding on the lower courts.” But it is considered a decision on the merits of only the specific question argued in the case, said Taylor, and does not apply “when doctrinal developments indicate otherwise.”
In Baker v. Nelson, wrote Taylor, the key arguments were whether the denial of a marriage license to a same-sex couple in Minnesota deprived the couple of their “liberty to marry” and their right to due process, equal protection, and right to privacy – the very grounds used in Smelt, as well as virtually every other gay marriage lawsuit. But it is “doubtful,” wrote Taylor, that the U.S. Supreme Court will hold Baker – which had to do with state laws determining the eligibility of couples for marriage – is binding in a case challenging DOMA, a federal statute which limits who can receive federal benefits related to marriage. The 9th Circuit panel made no comment about Baker.
When it issued its opinion on Friday, May 5, the three-judge panel said the couple has no standing to challenge DOMA because they have no marriage license.
“They said you have to be married in order to bring a case to seek the right to marry,” says Gilbert. “If you’re already married, why would you have to go to court to seek to be married?” Gilbert says that, if his clients decide to appeal, he will file that appeal – which would next go to the full 9th Circuit for review.
Meanwhile, gay legal activists reacted to the 9th Circuit panel decision with a measure of relief.
“We dodged a bullet,” said Freedom to Marry’s Evan Wolfson. “But I want to emphasize again that we are not saying to couples like this, ‘Don’t do anything; just sit and wait.’ What we are saying is, ‘Don’t do one thing: roll the dice in court prematurely.’ Rather, do the myriad of other things – such as telling your story, enlisting non-gay allies, building support – that will actually advance our shared cause and create a climate in which well-timed litigation will be more likely to succeed.”