By MARK SHERMAN
When the Supreme Court struck down part of an anti-gay marriage law, Justice Anthony Kennedy took pains in his majority opinion to say the ruling applied only to legally married same-sex couples seeking benefits from the federal government.
It’s a predictable next step in a long-term, incremental legal strategy that is being used at both the state and federal levels, and in state legislatures and executive mansions as well as the courts, to build public and official acceptance of gay marriage. Much the same approach was used decades ago by civil rights lawyers fighting state-sanctioned discrimination; one decision becomes a steppingstone to the next.
In the fight over gay marriage, Kennedy’s words also figured in an earlier example. He insisted in June 2003 that his opinion overturning state sodomy laws had nothing to do with governments’ recognition of same-sex marriage. Five months later, language from his opinion showed up in the second paragraph of a state court ruling that made Massachusetts the first state to allow gay and lesbian couples to marry.
In the June 26 decision in U.S. v. Windsor, Kennedy said the provision denying federal benefits to legally married same-sex couples relegates those marriages to second-class status, and “it humiliates tens of thousands of children now being raised by same-sex couples.”
He framed his argument with reference to states’ “historic and essential authority to define the marital relation.”
But it doesn’t take too much creativity to reframe his opinion to challenge state bans on same-sex marriage, said Jon Davidson, legal director of the gay rights group Lambda Legal.
“It’s stigmatizing and it’s harmful to people and particularly harmful to children when their parents’ relationship is treated as inferior by the government. Those points are points we will be making in all of our marriage cases,” Davidson said.
Davidson’s group is relying on the invalidation of the Defense of Marriage Act provision in a state lawsuit to force New Jersey to allow same-sex couples to wed. In that case, the new argument is that the New Jersey Constitution does not allow the state to essentially keep same-sex couples from receiving federal benefits by prohibiting them from marrying.
Like the Massachusetts Supreme Judicial Court, other state court rulings in favor of gay marriage have relied on provisions of their state constitutions. That has not happened by accident. The litigation plan had been to pursue marriage in liberal states, based on state constitutions, and generally avoid federal courts where judges appointed by conservative Republican presidents had, until recently, been in the majority.
Federal courts in California are so far the only ones that have said that a state same-sex marriage ban violates the U.S. Constitution. The Supreme Court did not decide that issue one way or the other in its gay marriage rulings, and instead relied on a technical legal argument to resolve the California case and clear the way for same-sex marriage in the state, which resumed at the end of June.
Same-sex marriage is legal, or soon will be, in 13 states and the District of Columbia, representing about 30 percent of the U.S. population. The states are: California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington.
But now federal challenges are popping up as well, in Nevada, Hawaii and Michigan, among other states.
The 9th U.S. Circuit Court of Appeals in San Francisco, which struck down the California prohibition on same-sex marriage, will consider the Hawaii and Nevada bans together, but that case is in its early stages.
In Michigan, a federal judge prominently cited the Windsor decision in allowing a challenge to the state’s marriage ban and its prohibition on same-sex couples jointly adopting children to go forward.
U.S. District Judge Bernard Friedman, appointed by President Ronald Reagan, quoted Kennedy in concluding that “plaintiffs are entitled to their day in court and they shall have it.”
A separate case in Michigan also “might cast a large shadow over a state law limiting marriage to opposite-sex couples,” Georgetown University law professor Marty Lederman wrote on scotusblog.com.
In that dispute, public employees are challenging a Michigan law that cuts off domestic partner benefits for unmarried couples.
U.S. District Judge David Lawson, appointed by President Bill Clinton, partly relied on the recent Supreme Court case in saying, “It is hard to argue with a straight face that the primary purpose, indeed, perhaps the sole purpose, of the statute is other than to deny health benefits to the same-sex partners of public employees. But that can never be a legitimate governmental purpose.” Lawson blocked the law for now, pending a trial.
When civil rights lawyers began their decadeslong quest to end official discrimination against black Americans, they pursued cases in state and federal courts that typically stopped short of the ultimate goal of overturning the Supreme Court decree in Plessy v. Ferguson in 1896 that “separate but equal” treatment of the races was permitted by the Constitution.
In a series of cases, the court chipped away at discrimination in higher education, including its 1950 decision in Sweatt v. Painter that said the University of Texas had to admit a black student to its law school because the one it created for black students did not offer an equivalent education. But even in June 1950, the court refused to re-examine the Plessy case.
Four more years elapsed before the court issued its seminal ruling in Brown v. Board of Education outlawing discrimination in public schools.
The prominent odd-couple lawyers who brought the California case to the Supreme Court, Republican Theodore Olson and Democrat David Boies, hoped the court would in one fell swoop get rid of 30 state constitutional bans on gay marriage and a few state statutes and declare that the right to marry cannot be abridged on the basis of sexual orientation and gender.
They failed to win that big victory, although their clients got married two days after the court decision.
For a time, Olson and Boies were at odds with many gay rights advocates who feared that asking the court to rule too broadly too soon could backfire. It turned out that the California case helped focus attention on gay marriage and perhaps sped up the shift in public opinion that now shows a majority in favor of same-sex marriage in most polls.
The different approaches have sometimes coexisted uneasily. That, too, is reminiscent of the civil rights movement, said Harvard Law School professor Mark Tushnet, who has written about the legal strategy of civil rights lawyers. “There were lawsuits that the NAACP didn’t want because they were seen as sure losers, but local lawyers went ahead and brought them anyway. They weren’t part of the plan,” Tushnet said.
Ten years ago, 13 states still had laws against sodomy when the court said that states have no right to intrude on the private, personal conduct of people, regardless of sexual orientation.
Interracial marriage still was illegal in 16 states in 1967 before the high court outlawed race-based state marriage bans.
In 1954, when the court issued its landmark Brown decision, 17 states had formally segregated school systems.
No one is sure what the magic number needs to be for the court to set a nationwide rule. Tushnet predicts that when roughly 40 states allow same-sex marriage, “it is going to seem all right to tell Mississippi that it has to recognize gay marriage.”
Justice Antonin Scalia, a dissenter in 2003 and again this year, saw the seeds of same-sex marriage in the court’s 2003 decision and he saw them again in the Windsor case, despite Kennedy’s insistence that the opinion was limited.
“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said.