By Lisa Keen
The shocker at the Kentucky Derby this year was that a little known horse with 50 to 1 odds came in first. The horse had never won on a dirt track before and the field that day was muddy. The key to the upset victory, according to some knowledgeable horse enthusiasts, was the jockey's strategy: hang at the back of the pack until mid-way through the race, and then ride the rail past everybody.
Lawsuits, too, have odds, though not the type that translates into numbers. They can have a greater chance of success or failure due to which court they are filed in, which judge is randomly assigned to the case, the scope of the issue it challenges, what arguments the lawyers use to make their cases, and, of course, which lawyers have filed the lawsuit and which are lined up to oppose it.
After much study and deliberation, Gay & Lesbian Advocates & Defenders this year finally mounted a legal challenge of the 13-year-old Defense of Marriage Act in federal court.
The lawsuit is a very narrow, "very mainstream" challenge, notes lead attorney Mary Bonauto. It tackles only 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.
GLAD found eight couples and three individuals – all of whom have applied for equal treatment under some federal benefit and been denied – and, in March, 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 v. Office of Personnel Management, which also sports a legal team of 11 attorneys, has the best chance for success.
Jenny Pizer, head of the Marriage Project for Lambda Legal Defense and Education Fund, calls the Gill lawsuit "very strong" and "meticulously" put together.
The case has been assigned to Boston federal district court judge Joseph Tauro, a 78-year-old Nixon appointee. But a Boston Globe article once described Tauro as "very sensitive to bigotry" and "very empathetic with those who insist that they be treated equally, in terms of ethnic or racial background."
Tauro has also been assigned the "related case" of Massachusetts v. U.S. – the latest entry into the field of federal lawsuits seeking marriage equality for gay couples. Massachusetts challenges the same section of DOMA as GLAD's lawsuit, and GLAD says there's a good chance these 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.
As Evan Wolfson, head of the national Freedom to Marry group, puts it, 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 and to win incremental victories.
The hobbled hazards
If ever there was a "one-shot, all-or-nothing" entry in this legal horserace, it would most certainly 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 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, refused to hear it.
In 2008, the couple married during California's five-month era of marriage equality and, when voters passed Proposition 8 banning same-sex marriage, Smelt and Hammer filed suit again, this time in state court, challenging both the statewide ban and both sections of DOMA. Judge David Carter, a Clinton appointee of the U.S. District Court in Los Angeles, dismissed that part of the lawsuit against the state July 16, noting that the couple is still married and thus, as a legal matter, have no standing to sue the state over its ban.
The remainder of the lawsuit, however, will proceed and, 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.
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.
Speaking of conservatives, in May, a flood of media attention followed the entry of a lawsuit seeking equal marriage rights – one that sported one of the nation's best-known conservative attorneys as litigator.
In part 3: The lawsuit filed by conservative Theodore Olson came as such a surprise, it prompted some 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.
