By Lawrence Hurley
WASHINGTON (Reuters) – Lawyers for the state of Utah believe they have the perfect case for the U.S. Supreme Court to decide once and for all the hotly-contested legal rights issue of whether states can ban gay marriage.
But so do lawyers in Virginia and Oklahoma, setting the scene for the high court to take the crucial first step as soon as Sept. 30 on which gay marriage case or cases the nine justices will hear during their next term starting on Oct. 6.
The court’s choice of a case or cases could affect when, if ever, gay men and lesbians in the 31 states that now bar them from marrying could get marriage licenses. The case selection will also do much to decide the scope of any ruling, including if the court is to decide definitively whether gay men and lesbians have a constitutional right to marry.
While lawyers have made preliminary claims for and against gay marriage in their filings, and also presented arguments about why their particular case might be best for the justices to hear, both sides agree that the Supreme Court needs to end the legal uncertainty without further delay.
For instance, states that ban gay marriage also refuse to recognize marriages that take place in one of the 19 states where gay marriage is legal. This can complicate matters for gay couples adopting children, or for a gay person seeking permission to make medical decisions on behalf of a spouse.
Virginia-based couple Carol Schall and Mary Townley were legally married in California but are unable to obtain a birth certificate that lists them both as parents of their daughter. Mary Bishop and Sharon Baldwin, plaintiffs in the Oklahoma case, have been living as a family for more than 15 years but were denied a marriage license and have been fighting the state ban since it was enacted in 2004.
State officials defending the bans counter that the U.S. Constitution does not dictate how states should define marriage and that there is no deeply rooted legal tradition that supports a right to gay marriage.
The litigation is “one of the most important civil rights issues of our time,” said Neal Katyal, a lawyer assisting same-sex couples in Utah.
Across the country, a wave of court rulings favored arguments for gay marriage, prompted by the Supreme Court’s 2013 decision in U.S. v. Windsor. In that case, the justices struck down a federal-benefits law that restricted the definition of marriage to heterosexual couples.
BEST CASE SCENARIO
All three cases being considered for hearing by the justices raise the question of whether states can ban gay marriage. The Utah and Virginia cases are broader than the Oklahoma dispute, which is the only one that excludes the additional question of whether states must recognize legal out-of-state same-sex marriages.
Utah lawyers give the justices five reasons why their case is ideal. One reason, they say, is that the state’s governor, attorney general and a majority of the state legislature support Utah’s ban on gay marriage. The lawyers say that should avoid any procedural problems about who is speaking on behalf of the state.
The situation is different in Virginia, where the state’s Democratic Attorney General Mark Herring backs gay marriage and has declined to defend the state law. Local county clerks are the state officials defending the ban in court.
Star legal power has been added on the side of same-sex couples in that state, with prominent lawyers Theodore Olson and David Boies saying in their brief that the Virginia case would “enable the court to resolve all aspects of the marriage equality question in a single opinion without leaving lingering questions.”
Olson and Boies, famously opponents in the 2000 Supreme Court case Bush v Gore in the closely contested presidential election, have joined forces to argue for marriage equality in the United States. Olson and Boies successfully challenged California’s 2008 gay marriage ban known as Proposition 8.
In choosing cases, the high court has historically tended to consider more than one case on issues of national importance, suggesting it is likely to do the same on gay marriage.
If the Supreme Court agrees to hear at least one of the three pending cases in the fall, oral arguments would be heard early next year and a ruling would likely come by the end of June 2015. Additional lawsuits testing other state bans are also in the pipeline.
Lawyers on both sides have sought to guide the justices on how to avoid complicated procedural questions that could prevent them from issuing a clear ruling on the merits and leave same-sex couples in legal limbo.
The court’s 2013 case on California’s gay marriage ban showed how procedural problems can derail a bigger legal question. The court failed to reach the merits of whether California’s gay marriage ban should be struck down because state officials had declined to defend the law on appeal. On a 5-4 vote, the justices left intact a district judge’s ruling that invalidated the ban.
One way the court could avoid such problems is to take more than one case. Jeffrey Fisher, a Stanford Law School professor representing same-sex couples in Oklahoma, suggested the court do just that, writing in his brief that “no single case can present a foolproof vehicle.”
(Reporting by Lawrence Hurley; Editing by Kevin Drawbaugh and Grant McCool)