Their optimism marks a sharp turn from two years ago. Gay marriage nears SCOTUS

Break out the rainbow flags and wedding bands, say gay marriage advocates: As this year’s term ends, they now predict that they’ll be celebrating a Supreme Court decision at the end of the next one — or at latest, 2016’s — fully legalizing same-sex marriage nationwide.

Their optimism marks a sharp turn from two years ago, when many LGBT advocates were wary of rushing to the Supreme Court with a gay marriage legalization case, worried that they’d get there too quickly, get ruled against, and set the movement back years.


Today, just a year after the Windsor decision striking down the core of the Defense of Marriage Act and the Perry decision that kept California’s Proposition 8 off the books, all major LGBT advocates support going to the Supreme Court. They plan to use the same kind of coordinated legal and public relations strategy that’s led them to 16 out of 16 victories in lower courts, including Tuesday’s in Kentucky, where a district judge appointed by President George H.W. Bush struck down the state’s gay marriage ban.

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Those decisions, along with movement in states that have legalized marriage legislatively, have created momentum. But they’ve also created an unusually pockmarked legal landscape that has different marriage laws state to state, even in the same region.

It’s the sort of situation, many believe, that just might motivate the Supreme Court to step in and establish one set law.

That, and not his own view on gay marriage, is what’s driving Utah Attorney General Sean Reyes to petition the court, explaining in a statement that he’s seeking “certainty and finality for all Utahns on such an important issue with a decision from the highest court.”

Noting that even among the attorneys in his office there are differing personal views on gay marriage, he added, “The state looks forward to the day when these issues are resolved and Utah, along with its citizens, have certainty and a clear understanding of the law.”

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Meanwhile, advocates are counting on that certainty to take the form of a legalization ruling from the same five justices who struck down DOMA — and maybe even a legacy-minded Chief Justice John Roberts joining, too.

They say they might get there via the Utah attorney general’s petition. Or via circuit court decisions in Oklahoma and Nevada. Or by way of the case that went through a full trial in Michigan, or others in Texas, Ohio, Wisconsin, Tennessee or beyond.

Marriage legalization advocates also feel that the lack of chaos or disruption in the 19 states (plus Washington, D.C.) that have legalized gay marriage — in a statistic advocates like to cite, that accounts for 44 percent of the total American population — will ease the minds of justices who might worry that the country’s not ready for gay marriage, as even Justice Ruth Bader Ginsburg has hinted at in the past. The polls that show popular opinion sprinting to legalization should help, too, they say.

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“A movement like ours doesn’t have to win in the four corners of the country. We had never been intending to plod state-by-state until we get through Mississippi in 2030 or something,” said Evan Wolfson, the founder and president of Freedom to Marry, which has been bringing cases for years. “But though you don’t have to win every state, you have to win enough states.”

“We’re just about as ready as we’re going to be,” said James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, who was among those urging advocates to put the brakes on efforts to go to the court for the Perry decision.

Since Windsor and Perry, over 80 cases have been filed in federal and state courts, now in every single state that doesn’t have legal gay marriage already.

“The court decisions were the equivalent of, ‘Come on in, the water’s warm.’ You have seen the arguments replicated in all these cases,” said Fred Sainz, vice president for communications at the Human Rights Campaign — a group that had, under previous leadership, been among the leading groups wary of now-executive director Chad Griffin’s push to get Perry in front of the Supreme Court.

Even among those who’d been eager earlier to go to the Supreme Court, there used to be a debate over finding the right case, the perfect plaintiff, the exact set of legal issues to present to wary justices. At this point, advocates don’t seem to think it matters which case is the one that gets there, confident that any of them would hit at the same due process and equal protection issues, and that, anyway, the court is seen as likely to wait for a few of them to rule on together rather than just taking the first one.

“Will the court take the first cert petition, I don’t know,” said Andrew Pincus, a former assistant solicitor general during the Reagan administration and currently a partner at Mayer Brown specializing in its Supreme Court practice. “But I think they’re going to take it.”

The timeline, Pincus said, is likely “sometime in the next six or eight months,” adding that as to the likely outcome, “I do think it’s quite telling that there’s been, except for one vote, such unanimity in the results the judges have reached, regardless of who appointed them. I think that tells you a lot of how people are looking at these legal arguments.”

In a measure of how much has changed, these days lawyers and leading LGBT organizations are almost racing each other to reach the top court, watching over their shoulders as each case progresses through the appeals process.

“Each of us who’s involved in one of these cases would love it to be our case. Who wouldn’t?” said Esseks, who’s involved in several of the pending cases. “But does it matter which case it is? I don’t think it does.”

And though there’s still a sliver of concern that gay marriage opponents may have just enough time with the current justices to squeak out a rejection of legalization — it did, after all, take 17 years to get the anti-sodomy decision reversed in 2003’s Lawrence v. Texas — advocates are more counting on that assumption to goad the people who’ve been losing the cases to appeal to the Supreme Court sooner.

“Whichever case it is, it’s going to involve a compelling story of real people who are really being harmed by the denial of the freedom to marry,” said Wolfson. “Whoever may get to be the lawyer who stands in front of the court, that lawyer will be swaddled by an extraordinarily rich and powerful presentation. It won’t all depend on one brief or one lawyer.”

Already, advocates have essentially standardized their public relations strategy with the arguments and amicus briefs that they’ve been making in front of courts across the country, largely coordinated by Mary Bonauto, the civil rights project director for Gay & Lesbian Advocates & Defenders — who was an attorney in the case that legalized gay marriage in Massachusetts but was initially hesitant herself about rushing to the Supreme Court.

The amici effort, Bonauto wrote in an email, is geared to “ensure there is authoritative information from all relevant experts.”

That’s what they’ll be hoping to bring to the Supreme Court — with the addition, they hope, of another amicus brief from the Obama administration, which provided one in Windsor.

Even over the past year, proponents’ read on the court has changed: Justice Anthony Kennedy’s opinion in Windsor dismissed the argument that gay marriage caused harm to children and seemed to be inviting the next, larger challenge.

“One can’t be sure what the Supreme Court’s going to do, but that opinion made it feel like it’s a lot safer to go forward now,” said LAMBDA Legal’s legal director Jon Davidson, who also initially warned against the filing of the Proposition 8 challenge, saying no one anticipated how much would shift while the case was working its way through the courts.

Especially after the decisions he’s written so far, Kennedy’s seen as unlikely to cap off his legacy on gay rights by overruling lower courts on legalization. The working assumption is that Kennedy will write the opinion again, joined by the four justices on the court’s liberal wing, where marriage advocates have also read signals from Ginsburg who has, since expressing her concerns two years ago about moving too quickly, officiated at a gay wedding at the Kennedy Center last August and a few weeks later said she thought the growing acceptance of marriage reflected the Constitution’s “genius.”

LGBT advocates had initially thought they could count on Roberts, too — in part because of his vote to uphold Obamacare, in part because they thought he wouldn’t want to be on the other side of an issue with still-expected decades ahead of him as chief. But his questions during the Windsor and Perry arguments and the separate dissent he wrote on Windsor dashed most of those expectations, though they still hold out the possibility that the historic nature of a legalization decision may lead him to give it the extra weight of a 6-3 vote.

Even Robbie Kaplan, the lawyer who argued the Windsor case in front of the Supreme Court, wasn’t counting on this.

“I would never have predicted it would have moved this fast,” she said.

CORRECTION: An earlier version of this story incorrectly said the Kentucky district judge who struck down the state’s gay marriage ban was appointed by President George W. Bush. The judge was appointed by President George H.W. Bush.

CORRECTION: An earlier version of this story incorrectly said the Kentucky district judge who struck down the state’s gay marriage ban was appointed by President George W. Bush. The judge was appointed by President George H.W. Bush.