Legal Experts Remain Focused on Marriage

Lambda, ACLU confirm that strategy of winning state recognition remains the mission

Spokesmen for two leading gay civil rights groups say that despite same-sex marriage’s poor showing at the ballot box this year, securing recognition of gay marriages through court challenges based in state constitutional guarantees remains central to their mission.

“Our goal has always been to win marriage under state constitutions,” said Michael Adams, director of education and public affairs for Lambda Legal, several weeks after the November 2 election, at which time 11 states approved referenda putting bans on gay marriage into their constitutions. “There is no retreat here. We have well-honed strategies that were developed before the election, and we will follow through on them.”

Gay City News spoke to Adams in the wake of a November 12 article in The New York Times that suggested that gay rights groups, on the heels of the election day rout, might be newly reluctant to mount federal constitutional claims for same-sex marriage. Both Adams and Matt Coles, who heads up the Lesbian and Gay Rights Project at the American Civil Liberties Union (ACLU), emphasized that both groups, and other leading gay rights litigators, were already wary of bringing the marriage question into the federal courts, given the current composition of the Supreme Court, and the stronger equal protection and individual liberty provisions available in some state constitutions as compared to the U.S. Constitution.

Among a number of same-sex lawsuits that Lambda is pursuing, last week the group argued its appeal on behalf of seven gay and lesbian New Jersey couples who first filed for marriage rights there in 2002 and it is also involved in one of several cases seeking gay marriage recognition in New York State. The legal theory underpinning Lambda’s case in New Jersey is based in the state constitution’s guarantee of the right to privacy, that past court rulings have found to include the right to marry, and in its guarantee of equal protection.

The ACLU similarly is pursuing marriage rights litigation throughout the U.S., also including a challenge in New York.

Adams and Coles acknowledged that with Pres. George W. Bush likely to name additional justices to the Supreme Court and expand his imprimatur on the federal judiciary generally during the next four years, the potential perils in federal litigation are even greater. Those risks are being assessed, they said, particularly with regard to any challenges mounted against the legitimacy of the anti-gay constitutional amendments voters approved this year.

“Of course we are looking to see what we can learn from the election results, to perhaps massage our strategy,” Adams said. “We are not going to stick our heads in the sand. We’ll do the work smarter, we’ll do the work better.”

Then, to emphasize that the push for marriage rights would not be scaled back, Adams added, “But we’re not going to not do the work.”

Coles, also interviewed shortly after he was quoted in The Times story of November 12, confirmed that the story accurately conveyed his views on the risks of bring the marriage question into the federal courts, but echoed Adams’ point that his group’s thinking had not fundamentally been altered by the election.

“This is perfectly consistent with our ongoing strategy,” he said.

Like Lambda, the ACLU bases the bulk of its marriage litigation on provisions in state constitutions, with the goal of ensuring that any victories it achieves are not subject to federal court review. That strategy first proved successful in two cases brought by Boston’s Gay and Lesbian Advocates and Defenders that led to the landmark civil unions law in Vermont and the advent of same-sex marriage in Massachusetts. Though right-wing opponents of gay marriage in Massachusetts sought a federal appeal of last November’s ruling by that state’s Supreme Judicial Court, the U.S. Supreme Court recently refused to intervene.

Based on this strategy, same-sex marriage litigation began working its way this year through state courts in New York, Washington, Oregon and California in addition to the ongoing case in New Jersey. In the wake of Oregon’s passage of a state constitutional amendment barring same-sex marriage on November 2, the ACLU converted its lawsuit there into a civil unions case, asking for all the rights and protections of marriage for gay couples, even if not the name. But in arguments before the Oregon Supreme Court held December 15, the group said that 3,000 same-sex marriages sanctioned in Multnomah County in Portland in March, eight months before the ballot initiative was approved, should be recognized by the state.

For the time being, the ACLU is accepting the voters’ verdict in Oregon restricting the title of marriage to opposite-sex couples, but amendments approved in other states may be ripe for challenge under their own constitutions.

According to Coles, in as many as eight of the 13 states that approved anti-gay marriage amendments this year—referenda in Missouri and Louisiana took place prior to November 2—sponsors of the initiatives may have run afoul of state constitutional requirements that limit ballot questions to a single topic by closing out not only same-sex marriage but other arrangements, such as civil unions, that provide the same or essentially the same rights as marriage.

In October, a district judge in Louisiana struck down that state’s amendment passed in September on those grounds. The Louisiana Supreme Court heard the state’s appeal of that ruling on December 1, but has not yet issued its decision. Similar challenges have already been filed in Georgia and Kentucky.

Coles explained that in four states—Mississippi, Oregon, Missouri and Montana—the amendments approved by voters were narrowly crafted to focus solely on access to marriage, not on its attendant rights, protections and obligations, and consequently are likely not subject to state constitutional challenge. Legal groups at this time will probably not mount federal challenges arguing that the voters’ actions in these states violate protections afforded by the U.S. Constitution.

But gay legal groups are not foreclosing federal litigation altogether. In 2003, Lambda and the ACLU filed a challenge to a Nebraska constitutional amendment that forbids the state and localities from ever granting legal recognition to same-sex couples. The legal groups contend that such a sweeping ban on future decisions by state and local governments poses an impermissible limitation on the rights of a class of citizens—gay and lesbian Nebraskans—to participate in the political process. That argument was a winner in the 1996 Romer case in which the Supreme Court threw out Colorado’s Amendment 2 that barred the state and localities from enacting anti-discrimination provisions based on sexual orientation.

According to Coles, the amendment passed this year in Utah could also be challenged on a similar basis in federal court.

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