Gay rights sup­port­ers pur­sue le­gal pro­tec­tions be­yond mar­riage

The Washington Post Sunday - - THE LONG PATH TO GAY MAR­RIAGE EQUAL­ITY - BY PAUL KANE paul.kane@wash­post.com

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.

JIM LO SCALZO/EU­RO­PEAN PRESSPHOTO AGENCY

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.

PETE SOUZA/THE WHITE HOUSE VIA GETTY IM­AGES

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)

JEWEL SAMAD/AGENCE FRANCE-PRESSE 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.

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