Gay rights supporters pursue legal protections beyond marriage
The court majority in New York handed opponents one of their most potent arguments. The state was justified in restricting marriage because “unstable relationships between people of the opposite sex present a greater danger that children will be born into or grow up in unstable homes.” Gay couples, by contrast, “do not become parents as the result of accident or impulse,” so marriage is not needed.
The political process was unavailing. The legal strategy was faltering. It would be another four years before any other state joined Massachusetts in allowing gay couples to wed.
“It didn’t seem inevitable,” remembers Marc Solomon, the national campaign manager for Freedom to Marry.
California: An explosive strategy
The mantra of the legal community seeking a right to gay marriage in 2009 was still the same: slow and steady progress; don’t risk making bad law for the whole country.
But Ted Olson’s legal strategy more resembled a jailbreak.
Hired against type by Hollywood celebrities to overturn California’s ban on same-sex marriage, known as Proposition 8, the conservative, Republican Olson was ready to go for broke. His lawsuit, filed in San Francisco, said that all state prohibitions violated the U.S. Constitution.
He intended to quickly bring the issue before the Supreme Court, a familiar venue where he had argued dozens of cases and represented Bush in Bush v. Gore.
Gay marriage advocates recognized the public relations gold of having a conservative icon in their corner. Only Olson had the clout to write a Newsweek cover article — The Conservative Case for Gay Marriage— and his recruitment of Democratic lawyer David Boies, who represented Al Gore, ratcheted up public attention.
But the advocates hated Olson’s strategy. They feared that years of work would be lost if he had miscalculated the Supreme Court’s readiness to rule in favor of gay marriage.
They caught a break when U.S. District Judge Vaughn R. Walker slowed things down. He, too, knew that the case was likely headed to the Supreme Court and insisted on making the record complete with a trial, with witnesses, cross-examination and “a full airing of the issues,” he said in a recent interview.
“At bottom, the constitutional issues associated with same-sex marriage are not all that complicated,” Walker said. It seemed clear that equal protection and due process rights were compromised by denying marriage licenses to gay couples, “so I thought it would be useful to see just what the state’s justification was.”
Walker said he recognized the importance of the issue and the attention it was receiving. “You’re a little more conscious that everything you do is going to be scrutinized,” he recalled.
There was another reason Walker’s ruling would be scrutinized: He was gay and in a long-term relationship. Although his sexuality was not a secret — FBI agents had asked acquaintances about that more than 20 years earlier, before President Ronald Reagan first nominated him for the bench — it was not in the open, either.
“Had I recused myself or said, ‘Folks, you ought to know I’m gay,’ that sends the message that a gay judge can’t decide these issues in a dispassionate way, and I thought that was not the message that was appropriate to send,” Walker said.
Kenji Yoshino, a constitutional law professor at New York University who wrote a book about the trial, said he thinks it is hard to overstate its importance.
“It was just different in kind from any conversation that I’d seen in the public sphere about same-sex marriage — media debates or legislative hearings or popular debates or even academic discourse,” he said.
Witnesses had to be experts in their fields, sworn in to tell the truth, challenged by cross-examination.
On Aug. 4, 2010, Walker handed down a 136-page ruling in Perry v. Schwarzenegger, finding that Prop 8 violated both the Equal Protection and Due Process clauses of the 14th Amendment. His opinion listed 80 findings of fact about marriage and child-rearing drawn from the trial testimony.
“It made a record for everybody else,” Olson said. “Other judges throughout the country constantly cited that, and it influenced public opinion.”
Although he had opposed Walker’s plan for a full trial, Olson acknowledged recently that it turned out to be an unexpected boon for the gay marriage movement, offering a public forum where it could challenge opponents’ traditional arguments.
“People who said kids don’t do well in gay households — we were able to say, ‘Where’s your evidence?’ ” Olson recalled. “People said it would damage traditional marriage. We said, ‘Where’s your evidence?’ ”
Walker retired in 2011 after more than 20 years on the bench. He is in private practice again, in a corner office with stunning views of San Francisco Bay.
He is often thanked by people he meets for his opinion, and he says, like all judges, that it makes him a little uncomfortable. On the other hand: “I pissed off a lot of people with my decisions. I might as well make a few friends.”
Washington: A cautious president
Barack Obama was supported big time by the gay community when he ran for president in 2008, and once he was elected, he returned the love.
He promoted gay aides, named gay foreign ambassadors, nominated gay judges. Gay rights advocates had direct access to Valerie Jarrett, his longtime friend and trusted White House confidante.
But on same-sex marriage, there was frustration.
Despite a campaign pledge to undo the Defense of Marriage Act, a Clinton-era law that withheld federal recognition of same-sex marriages, Obama’s Justice Department had defended the law against challenge.
And the cautious president refused to say that he believed gay couples should be able to marry, offering instead that he supported civil unions and leaving it up to the states to decide whether to do more.
Same-sex advocates noted that Olson — who, the joke went, held annual barbecues at his house for the vast right-wing conspiracy— was more progressive on gay marriage than Obama. And Olson himself was becoming frustrated.
“I said several times to people who I knew were talking to the White House: ‘I’m this close to writing an op-ed that says the number one authority they are citing against us is the president of the United States. How long are you going to let this happen?’ ” Olson said recently.
Activists such as Wolfson, who thought the first target should be DOMA, were working from the inside. Jarrett was a “truly engaged and active conduit,” Wolfson said, and his message to her was “Help us help you help us.”
The department changed the tone of its DOMA defense — and went further. It began to look for a way to abandon the law. To Tony West, assistant attorney general for the civil division at the time, the law failed on equal protection grounds. He said recently: “You had similarly situated folks— married heterosexual and married same-sex couples — and they were being treated differently by their government unfairly. Very simple.”
But it is extremely rare for the department to abandon the defense of a law.
Such things take time, and the government faced a deadline to respond to a DOMA challenge filed by Edie Windsor of New York. Windsor’s spouse, Thea Spyer, had died, and had the federal government recognized their marriage, Windsor would have owed nothing on the estate they had accumulated during 44 years together. Because DOMA withheld recognition of same-sex marriages, Windsor’s tax bill was $366,000.
A government lawyer called Windsor’s lawyer, Roberta Kaplan, to request an extension. No, Kaplan said. The next call came from West, and again the answer was no.
West revised his pitch. As Kaplan remembers it, West said: “Robbie, I’m telling you that the president, the attorney general and I are considering what to do in this case. Do you hear me?”
She reluctantly agreed to the extension, adding, “I just want you to know, as you and the attorney general and the president deliberate about this, I’ll be praying for you.” Kaplan recounted.
She was rewarded when Attorney General Eric H. Holder Jr. announced that Obama had concluded that the law was unconstitutional and the Justice Department was no longer defending it.
The other shoe dropped in May 2012. Vice President Biden had gotten ahead of Obama, saying he supported same-sex marriage. Sev--
Fresh off their biggest legal victory, gay rights supporters began to expand their efforts beyond same-sex marriage to a broad push to rewrite civil rights law and extend protections to other personal and financial actions.
A liberal coalition spanning gay rights groups and traditional African American leaders turned its attention to a new legislative bid to outlaw discrimination against homosexuals in employment, housing, financial dealings and other regular actions not protected under the Supreme Court’s ruling declaring same-sex marriage a constitutional right.
“You can be married on Saturday, post your pictures on Instagram on Sunday and fired from your job on Monday,” said Rep. David N. Cicilline (D-R.I.), one of six openly gay House members and the lead sponsor of the legislation.
After Friday’s ruling, Sen. Jeff Merkley (D-Ore.), the sponsor of the legislation in that chamber, e-mailed thousands of supporters asking them to get behind the new bid because, despite the marriage decision, it is still legal in some states to “kick someone out of a diner or other public accommodation because of who they love.”
Although Cicilline and Merkley plan to formally introduce the legislation next month, they acknowledged that it will be tough in the near term to win approval of an expansive gay rights agenda. Republican leaders in Congress, while trying to avoid inflammatory statements about the decision, have shown no appetite for a debate that would open up gay rights beyond what the federal courts have established.
Sen. Charles E. Grassley (R-Iowa), chairman of the Judiciary Committee, expressed concern that conservative institutions would be forced to take actions against their religiously held belief opposed to gay marriage. “Everyone deserves to be treated with respect, and nobody should have their deeply held religious beliefs trampled by their government,” he said after the ruling.
On the campaign trail, some Republican contenders for the 2016 presidential nomination grabbed hold of the Supreme Court ruling to try to appeal to social conservatives in key early primary states. After Friday’s ruling, Sen. Ted Cruz (R-Tex.), a member of the Judiciary Committee that would have oversight of Merkley’s legislation, called for elections that could be held to throw justices off the Supreme Court.
In the short run, gay rights supporters also focused on shoring up implementation of the court’s marriage ruling, as some of the most conservative-leaning states have governors or attorneys general who are refusing to uphold the decision and allow gay marriage in their states.
The Campaign for Southern Equality, which has worked to advance gay marriage rights, filed a brief with the U.S. Court of Appeals for the 5th Circuit, based in New Orleans and covering a bloc of Southern states, asking those judges to immediately lift their stay on a lower-court ruling in Mississippi that allowed for same-sex weddings. Despite the Supreme Court’s ruling, state Attorney General Jim Hood has said that the federal courts in his region need to act first, leaving same-sex marriage blocked in Mississippi.
Despite those hurdles, supporters of gay rights expressed long-term optimism, particularly after the ruling written by Justice Anthony M. Kennedy, a 1987 appointee of President Reagan. In an interview Saturday, Merkley cited “Kennedy’s clarion call about dignity in the eyes of the law” but noted the need to extend the effort.
“You can’t have dignity in the eyes of the law if you can still be discriminated against in mortgages,” Merkley said.
More than half the states do not have laws protecting against discrimination based on sexual orientation, meaning that landlords, banks and restaurants in those states can discriminate.
For the previous 20 years, the leading gay rights advocates had been promoting the Employment Non-Discrimination Act, which was originally authored by Sen. Edward M. Kennedy (D-Mass.) and Merkley took up as Kennedy became ill and died in 2009. In November 2013, Merkley succeeded in winning ENDA’s passage in the Senate, but it languished in the Republican-controlled House.
Soon after the Senate vote, the liberal coalition decided to go bigger and draft legislation that would provide many more protections against discrimination. According to Winnie Stachelberg, executive vice president of external affairs at the Center for American Progress, the expansion of same-sex marriage at the state level in recent years brought on a “backlash” against those couples as their private lives became more public.
A key difficulty Merkley and Cicilline face is that, to be successful, they will have to amend the landmark 1964 Civil Rights Act. Black leaders normally resist opening up the law for fear that it would lead to rollbacks in the protections it afforded based on race and ethnicity.
They have built their coalition beyond the obvious allies — Sen. Tammy Baldwin (D-Wis.), the only openly lesbian senator; and the Human Rights Campaign, the most prominent gay rights group — to include prominent black leaders and organizations.
Rep. John Lewis (D-Ga.), the civil rights icon, and Sen. Cory Booker (D-N. J.), one of two black senators, are supporting the emerging legislation. The NAACP and the Leadership Conference on Civil and Human Rights were among the 14 groups that signed on to the statement that Merkley and Cicilline issued after Friday’s ruling.
Lawmakers said they are trying to find Republican co-sponsors and that the leaders of the two judiciary committees, Grassley and Rep. Bob Goodlatte (R-Va.), have not signaled an inclination to even hold a hearing. “We don’t see a chairman who is stepping forward at this point,” Merkley said.
Stachelberg, who previously served as a top adviser at the Human Rights Campaign, said that the new effort needed to learn from the public campaigns for same-sex marriage and overturning the “don’t ask, don’t tell” law that prohibited openly gay service members from working in the military.
“We need a similar kind of public education campaign,” she said. “We have to take the case to the American people.”
This is a more difficult task, supporters said, because marriage and military service are such traditionally public actions that are almost universally supported. Forbidding a certain group of people from taking part became increasingly unpopular with younger, more socially liberal voters.
But educating the public on the kind of discrimination that takes place behind the closed doors of a job interview or during the mortgage application process is a more difficult task.
When he first started working on ENDA, Merkley recalled a conversation with his daughter, then in middle school, in which she did not understand how that type of discrimination was not prohibited. “What’s hard is, people assume it’s already illegal,” he said.
“The public doesn’t see the job interview when someone gets turned away,” he added.
InMarch 2013, David Boies, center left at microphone, and Ted Olson, right, spoke to the media after oral arguments before the Supreme Court in their quest to overturn California’s ban on same-sex marriage.
WASHINGTON, DC - MAY 9: U.S. President Barack Obama participates in an interview with Robin Roberts of ABC's GoodMorning America, in the Cabinet Room of the White House onMay 9, 2012 inWashington, DC. During the interview, President Obama expressed his support for gay marriage, a first for a U.S. president. (Photo by Pete Souza/WhiteHouse Photo via Getty Images)
TOP: InMay 2012, President Obama told ABC’s Robin Roberts that his view on gay marriage had evolved and that he backed it. ABOVE: A large tax bill after her partner’s death led Edie Windsor, center, to challenge the Defense ofMarriage Act. It was ruled unconstitutional.