A little over nine years ago, when then-San Francisco Mayor Gavin Newsom decided to flout California law and hand out marriage licenses to gay and lesbian couples, it provoked such a local and national furor that even his own political party and his Catholic neighborhood base wanted to tar and feather him.
At the time, Democratic presidential candidate John Kerry couldn’t distance himself enough from Newsom’s gay rights stunt. No state had yet to legalize gay marriage. Opinion polls firmly and consistently showed the majority of Americans, including in California, opposed same-sex marriage. There was not a civil rights lawyer in the country ready to challenge gay marriage in a conservative U.S. Supreme Court.
But now, as the Supreme Court this week takes on gay marriage for the first time in history, attitudes on this generation’s most contentious civil rights issue have shifted dramatically since couples lined up at San Francisco City Hall to take part in Newsom’s short-lived wedding ceremonies.
“I thought perhaps it would happen in my lifetime,” Newsom, California’s lieutenant governor, said of the Supreme Court deciding gay marriage. “But I never imagined it would happen within a decade.”
No doubt, the nine justices who will hear the legal challenge to California’s Proposition 8 on Tuesday and the 1996 federal Defense of Marriage Act the following day are well aware of the pace of events on same-sex marriage. The president now supports gay marriage. Opinion polls show a significant majority of Americans now endorse it, as well.
Dozens of prominent conservative Republicans have lined up against gay marriage bans, as well as hundreds of the nation’s most powerful businesses, including Apple and Google. And gay marriage is now legal in nine states.
But despite the apparent momentum, the real question looming over this week’s proceedings is whether this is the right time in history for the Supreme Court to end the legal debate. Has the societal shift finished its arc? As gay marriage foes are quick to emphasize, 37 states outlaw same-sex marriage, still a vast majority.
Indeed, as civil rights struggles go, this one has arguably simmered for less time than the battles over school integration and interracial marriage when they reached the high court decades ago. By the time the Supreme Court declared laws against interracial marriage unconstitutional in 1967 in Loving v. Virginia, only about a dozen states still banned the unions, although public sentiment remained against such marriages.
Jim Campbell, a lawyer for Alliance Defending Freedom, which backs Proposition 8, stresses the political battle over gay marriage is “at some point in the middle. … The Supreme Court should resist demands to prematurely end the national debate.”
Legal experts agree the Supreme Court has always been reluctant to get too far in front on social issues, and that will weigh heavily on how far they will go in the same-sex marriage cases.
“Given the moving picture, my hunch is that they are going to move incrementally, not dramatically,” said Jane Shachter, a Stanford University law professor.
On Tuesday, the court will first consider California’s epic struggle over same-sex marriage rights, which has reached a crucial point in the larger battle over whether any state can forbid gay and lesbian couples to wed.
The Supreme Court is reviewing a federal appeals court’s decision last year declaring California’s 2008 voter-approved ban unconstitutional because it stripped away a previous right to marry for gay and lesbian couples. In May 2008, the California Supreme Court struck down the laws barring same-sex marriage, allowing more than 18,000 couples to wed before voters approved Proposition 8 the following November.
Before same-sex marriage supporters took their fight to the federal courts, the state Supreme Court rejected a challenge to Proposition 8. The court found voters’ decision to amend the state constitution trumped its authority to interfere. Only Justice Carlos Moreno dissented.
Backed by a powerhouse legal team led by former Republican U.S. Solicitor General Theodore Olson and trial lawyer David Boies, two same-sex couples triggered the Supreme Court case by challenging Proposition 8 in the federal courts. Berkeley’s Kristin Perry and Sandy Stier were one of those couples.
“We felt (turning to the courts) was a better approach because it would be a permanent solution,” Stier said in an interview last week. “People were voting on our rights at the ballot box.”
At that time, not everyone in the gay rights movement agreed with the strategy, expressing concern Olson and Boies had moved too quickly to push the issue into the federal courts and toward the U.S. Supreme Court. Even in 2008, just a trickle of states were moving to legalize gay marriage, politicians were against it and opinion polls, while shifting, remained unfavorable.
“I think many of us did have concerns,” said Jon Davidson, legal director for Lambda Legal, a leading gay rights group. “I don’t think anybody thought we’d see quite the progress we’ve made and the number of advances we’ve made since the (Proposition 8) case has been pending.”
Added Therese Stewart, a San Francisco chief assistant city attorney: “Have we been anxious a little bit? Of course.”
So far, the lawsuit has won at every turn. Former San Francisco Chief U.S. District Judge Vaughn Walker struck down Proposition 8 in 2010, and the 9th U.S. Circuit Court of Appeals agreed last year, although in a much narrower ruling that, if endorsed by the Supreme Court, would limit the impact only to California’s marriage laws.
Just last month, the Obama administration threw its weight behind same-sex couples, calling Proposition 8 unconstitutional and for the first time standing against a state’s right to ban same-sex marriage.
Proposition 8 supporters, however, have continued to defend traditional marriage, arguing states can restrict licenses to heterosexual couples. In briefs to the Supreme Court, they argue government has a compelling interest in banning gay marriage — crucial under anti-discrimination law — because of the importance of procreation and child-rearing to the institution.
Twenty states have sided with that argument, although 13 aligned with same-sex couples. Conservatives believe it will be hard for the Supreme Court to ignore the 37 states that retain gay marriage bans.
“You’re talking about a rather dramatic decision,” said John Eastman, chairman of the National Organization for Marriage and a law professor.
Moreno, now retired from the state Supreme Court, believes the time is right for the U.S. Supreme Court to overturn the law. He hopes his reasoning, that Proposition 8 violates same-sex couples’ equal protection rights, will be vindicated.
“I think it’s not a big leap in terms of the law,” said Moreno, also a former federal judge. “But,” he cautions, “the idea it should remain with the states, let the people decide, that also will resonate with a number of the justices.”
The issue of benefits
The challenge to the federal gay marriage restrictions, known as the Defense of Marriage Act, is considered a more straightforward opportunity for the justices to jump into the legal fray. It may not carry the broader implications of taking on state laws that dot the country from Alabama to Idaho.
In the case to be heard Wednesday, the justices will review a federal appeals court’s ruling that found it unconstitutional to deny federal benefits to married same-sex couples. The case involves Edith Windsor, a New York woman who was forced to pay hundreds of thousands of dollars in federal estate taxes when her spouse died because federal officials would not recognize their marriage rights.
At its core, the issue is whether the federal government can deny benefits, which range from tax exemptions to Social Security, to couples who marry in states such as New York that have legalized same-sex marriage.
The Obama administration has sided with Windsor and other similar challenges to the federal law around the country, including a case involving San Francisco couple Karen Golinski and Amy Cunninghis who married before Proposition 8 was passed. There is high anxiety now that the issue has reached the grandest legal stage. The Supreme Court could issue a ruling at the end of June that amounts to a summer blockbuster on same-sex marriage rights, or decide history is not ready and let the fight over gay marriage percolate further.
In both the federal and Proposition 8 cases, the justices do not even have to address the broader legal questions surrounding same-sex marriage. The Supreme Court must first resolve whether Proposition 8’s backers can defend the law when the governor and attorney general refuse to do so, and the same uncertainty has clouded House Republicans’ right to challenge the Defense of Marriage Act in place of the executive branch.
If the Supreme Court finds those gay marriage opponents can’t defend the laws on their own, the two cases could end without any historic proclamations on same-sex marriage rights from the nation’s high court.
But for Golinski and others watching the legal and political conflict over same-sex marriage accelerate, the hope is that the Supreme Court resolves the issue once and for all.
“There is a lot of uncertainty,” Golinski said, preparing to head to Washington, D.C., to attend the arguments. “And most people don’t like to live their personal lives with this level of uncertainty. I still find it all somewhat stressful.”
Howard Mintz covers legal affairs. Contact him at 408-286-0236. Follow him at Twitter.com/hmintz.