Attorneys battle over who will argue for gay marriage in Supreme Court

Gay rights advocate Vin Testa waves a rainbow flag in front of the Supreme Court in Washington.
(J. Scott Applewhite / Associated Press)

Gay rights lawyers agree on how the Supreme Court should rule in the upcoming marriage cases. And they agree on why gays and lesbians deserve a constitutional right to marry nationwide.

But they have yet to agree on one crucial detail: who will stand before the high court to make that argument.

In recent weeks, the most heated and difficult question among the gay-marriage advocates has been trying to decide who is best suited to stand before the justices in a case that promises to be a landmark in equal rights law.


The Supreme Court itself set the stage for the squabbling. It voted to hear gay-marriage cases from four states -- Michigan, Kentucky, Ohio and Tennessee. And it compressed the four into two arguments -- one lasting 90 minutes on the right to marry and one for 60 minutes on recognizing gay marriages from other states.

And to complicate matters further, the couples seeking an equal right to marriage have local attorneys who represented them at the start as well as leading gay-rights lawyers who worked on their case when it reached a U.S. appeals court. They include lawyers from the ACLU, Lambda Legal, the National Center for Lesbian Rights and Gay & Lesbian Advocates & Defenders.

They have sharply disagreed over whether a local attorney who knows the couple or a national expert who knows equal-rights law is best suited to make the argument.

On Tuesday, the four groups of lawyers asked the Supreme Court to divide up the time equally among them. A lawyer from Michigan and one from Kentucky would each have 15 minutes to argue in favor of a right to marry for gay couples. And a lawyer from Ohio and one from Tennessee would have 15 minutes each to argue in favor of a state being required to recognize gay marriages from others states. The other 15 minutes would go to U.S. Solicitor General Donald Verrilli, who represents the Obama administration.

“We have an incredible wealth of talent available to argue on behalf of same-sex couples’ freedom to marry and right to have their marriages recognized in all 50 states,” the four groups said in a joint statement.

They said they will decide on exactly which attorneys will argue once the court accepts or rejects their proposal for splitting up the time.

“We are taking this process one step at a time,” said Jon Davidson, Lambda’s legal director in Los Angeles. “We have a wonderful collaboration, and we all think it is best to make a final decision after hearing from the court.”

On Twitter: @DavidGSavage