Gay marriage supporters, opponents alike eager for Supreme Court ruling

Chris Serrano, left, and Clifton Webb embrace after being married in Salt Lake City in December.
(Kim Raff / Associated Press)

After fighting state by state for more than 20 years, the same-sex marriage movement is riding an extraordinary wave of legal victories as the Supreme Court prepares to decide whether gays and lesbians have a constitutional right to marry nationwide.

The justices will meet Monday to consider a thick pile of pending appeals, and they have before them gay-marriage cases from five states. In all five, the ban on same-sex marriages was struck down. But unlike most appeals, both sides — the winners as well as the losers — are asking justices to hear the case.

“It’s a near certainty the court will decide it this term and definitively answer” whether same-sex marriage is a constitutional right, said Irv Gornstein, a law professor who directs Georgetown’s Supreme Court Institute.


Gay-rights advocates who once steered clear of the high court are now eager for a ruling. “There is no question we are winning, but winning is not won,” said Evan Wolfson, founder of Freedom to Marry. “It’s time for the Supreme Court to finish the job.”

First, the justices have to settle on which case, or cases, they will hear, and that may take a few weeks. They could hear cases from Utah, Oklahoma, Virginia, Wisconsin or Indiana. In all but Virginia, the state’s top lawyers are fighting to uphold laws banning same-sex marriage.

The swift pace of the lower court rulings has surprised many, including the justices. They were closely split in June 2013 when they struck down portions of the federal Defense of Marriage Act and sidestepped a constitutional ruling on the state ban in the Proposition 8 case from California. They expected it would be several years before the issue returned.

Instead, the state bans have fallen like dominoes when challenged in federal courts, beginning in the “red” states of Utah and Oklahoma, and moving from there to the Midwest and parts of the South.

Judges one after another decided that states, when challenged, could put forth no convincing reason or justification for denying marriage to committed gay couples, many of whom had been together for many years and were raising children.

“All of the rationalizations and excuses have proven hollow,” Wolfson said.

But state attorneys in four Republican-led states say they are determined to offer the Supreme Court a robust defense of their state laws. They noted that their voters, as well as their lawmakers, had adopted measures in the last decade to define marriage as the union of a man and a woman. They sought to prevent “judicial activism” by defining marriage in the state constitution, said Wisconsin Atty. Gen. J.B. Van Hollen, in a court filing.


“It all comes down to this: Thousands of couples are unconstitutionally being denied the right to marry, or millions of voters are being disenfranchised of their vote to define marriage,” Utah’s state attorneys said in their appeal. “Either way, the court’s review is necessary.”

So, what could be the legal justification for denying marriage to same-sex couples?

An attorney for the Alliance Defending Freedom, a conservative Christian group based in Arizona, said marriage had been understood as “connecting children to a biological mother and a biological father. Governments have recognized marriage because it provides an important social benefit in connecting children to their biological parents,” said Jim Campbell, an alliance attorney who is working on the defense of the Oklahoma and Virginia laws.

He also argued that “redefining marriage is an important question of social policy that the people should be able to define for themselves. The Constitution doesn’t speak to the definition of marriage, so it should be left to the people,” he said.

However, those arguments have been steadily rejected by federal judges. With the one exception of a federal district judge in Louisiana, all of the federal courts to decide gay marriage cases since December have struck down the bans. Judges decided that marriage is a fundamental right and gay couples, if excluded, were being denied the “equal protection of the laws.”

For Mary Bonauto, an attorney at Boston-based Gay & Lesbian Advocates & Defenders, the legal struggle to recognize same-sex marriages began in Hawaii in the early 1990s and was played out mostly in New England. In 1999, she won a ruling from the Vermont Supreme Court that led to the first state law recognizing “civil unions.” Then she won the 2003 ruling from the Massachusetts high court that, for the first time, upheld marriage for same-sex couples.

“That broke the historic barrier, but for many years after, Massachusetts was the only state where we had marriage, and the attacks against it were fierce,” Bonauto recalled. “But weddings are so happy. They bring people together. And they bring happiness and security to families.” She also launched the first lawsuit to strike down the Defense of Marriage Act and give equal benefits to married gay couples.


Over the last decade, “so many people have changed their minds” on this issue, Bonauto said. Having feared same-sex marriage, they have come to accept it and then support it, she said.

Now she is looking for the Supreme Court to act. “For many same-sex couples, this is an issue of enormous urgency,” she said. “They may have children, or they may be old and dying. They can’t wait forever. So it’s profoundly important for the court to resolve this issue for the nation.”