- The Washington Times - Sunday, April 26, 2015

Advocates on both sides of the gay marriage issue prepared Sunday for High Noon — at 10 a.m. Tuesday.

At that hour, perhaps the nation’s most contentious political issue will get its day in court, as the Supreme Court prepares to hear oral arguments in four cases that gay marriage advocates say will go down in history as landmarks of anti-discrimination law.

Competing rallies have been planned outside the high court Tuesday morning. More than a dozen people had already started camping out on the sidewalk near the court by Saturday morning in hopes of getting one of the coveted public seats for the 2-hour hearing.

At issue in the cases are whether the U.S. Constitution’s 14th Amendment requires states to issue marriage licenses to same-sex couples and whether states are required to recognize marriages conducted by other jurisdictions.

Dozens of gay couples from Michigan, Tennessee, Ohio and Kentucky are urging the court to agree that they have a fundamental right to marriage — and many attorneys and gay rights advocates believe they have the upper hand in the contest.

“If you read what the Supreme Court said” in a 2013 gay marriage case, Windsor v. United States, “there’s really no other way for the Supreme Court to come out in the case that’s up for argument on Tuesday,” lawyer Ted Olson said on NBC’s “Meet the Press.”

Mr. Olson and David Boies argued successfully against California’s Proposition 8, the 2008 gay marriage ban.

They said they believe at least five of the nine justices are in favor of sanctioning same-sex marriage.

However, Arkansas Gov. Asa Hutchinson, a Republican, called the court’s thinking on the issue “a little bit unpredictable.”

“I think they could continue to give some deference to the states, but I do think we’ll probably have to clearly recognize what happens in another state,” Mr. Hutchinson said on “Meet the Press.”

The Supreme Court has affirmed that states have the constitutional right to create marriage policies — which is why it struck down the federal government’s Defense of Marriage Act in the 2013 Windsor case, Gene Schaerr, former clerk for Supreme Court Justice Antonin Scalia and Chief Justice Warren E. Burger, told a recent briefing at the Family Research Council.

The Defense of Marriage Act was overturned precisely because it overrode states’ rights in domestic policies, he explained. It would be “a monumental act of judicial hypocrisy” for the high court to “turn Windsor around” and force states to adopt same-sex marriage.

The high court needs to “stick with” the logic of Judge Jeffrey S. Sutton’s majority opinion for the 6th U.S. Circuit Court of Appeals, Caleb Dalton, litigation counsel of Alliance Defending Freedom, said at a briefing at ADF offices Friday.

Moreover, if the high court agrees that the cases deserve only rational-basis review, states can show they have multiple, legitimate reasons to keep marriage laws as the union of one man and one woman, Mr. Dalton said.

Preparing for the case

Mary L. Bonauto, who is arguing for the gay couples in the “right to marry” question before the high court, said she and Douglas Hallward-Driemeier, who will answer the “state recognition” question, have been consumed with mock trials.

“We are really happy that this time, in 2015, we are going to be able to make a full argument to the court,” Ms. Bonauto, director of the Civil Rights Project at the Gay and Lesbian Advocates and Defenders in Boston, said in a recent phone call with reporters.

“If the question is ‘who decides who you marry, the government or the individual,’ under our case law, under our system of equality and liberty, it’s the individual and not the government,” said Ms. Bonauto, who won the first state gay marriage victory in Massachusetts in 2003.

Mr. Hallward-Driemeier, a partner in Ropes & Gray law firm, will argue that states must recognize one another’s legal marriages.

“Separate but equal,” anti-miscegenation laws, and rules that men, but not women, have legal domestic rights have all been overturned and discarded by courts, he said.

“What’s at stake on our question is the ability for marriage to fulfill its purpose, which is to provide stability and security for the couple and their children,” Mr. Hallward-Driemeier said. There are “huge implications” for a couple who is legally married, but then moves to another state where their union is not recognized, he added.

The attorneys said they welcomed the additional arguments from U.S. Solicitor General Donald Verrilli Jr., in favor of gay marriage.

Referring to private talks with colleagues, Mr. Hallward-Driemeier said it is wonderful that the day has finally come “when the United States’ legal representative is standing beside gay and lesbian couples to argue that they cannot be denied the right to marry. That is something to celebrate, and we absolutely do.”

Lawyer John J. Bursch, special assistant attorney general and former solicitor general for Michigan, is representing the states on the “marriage” question.

He recently told The Detroit News that when he enters the high court Tuesday, he will again do something he has done before for luck — “reach out and touch the foot” of the 132-year-old statue of former Chief Justice John Marshall.

Having argued before the court eight times should also be a strength, Mr. Bursch told The Detroit News. “I know the justices very well and they know me. I think that’s helpful if you’re walking into the court,” he told The News.

Mr. Bursch will have 45 minutes to explain why states, such as Michigan and Kentucky, have the right to decide a core domestic policy like marriage.

“It has to be decided at the ballot box, and not through the courts,” he told The News.

Joseph F. Whalen, associate solicitor general for Tennessee, will represent states, such as Ohio, Kentucky and Tennessee, in arguing that they have the right to decide which legal unions they will recognize.

Mr. Whalen has not given press interviews, but in his brief to the Supreme Court, he argued that there is no fundamental right to same-sex marriage, and some states cannot impose their policy choices on other states.

Some 147 friend-of-the-court briefs were filed in the cases, which is known by its lead case James Obergefell v. Richard Hodges, director of the Ohio Department of Health.

The aftermath

Tony Perkins, president of the Family Research Council, said Sunday that if anything, a court ruling in favor of recognizing same-sex marriage in all 50 states will inflame the debate.

“The courts are not going to settle this issue. In fact, I think it does a disservice to both sides if the court weighs in on public policy like this,” Mr. Perkins said on the CBS program “Face the Nation.” “The courts are decided to interpret the Constitution and the constitutionality of laws, not create public policy. When they do that, they create division and they erect barriers to reaching consensus on public policy like this.”

Evan Wolfson, president of Freedom to Marry, which has sought to legalize same-sex marriage in all states by 2016, said he is eager for his campaign to “close down.”

“[T]he vast majority of Americans have opened their hearts and changed their minds and moved forward to embrace the freedom to marry. And the courts are following where that public opinion has gone,” Mr. Wolfson said on “Face the Nation” on Sunday.

More than 60 courts have ruled in favor of same-sex marriage, and a recent Washington Post/ABC News poll shows that six in 10 Americans surveyed favor allowing “gays and lesbians to marry legally,” Mr. Wolfson noted.

Currently, 37 states permit gay marriage, but many have done so under court order. Alabama’s state court has notably told its probate clerks that it, not one federal judge, decides marriage policy.

As a result, 13 states, plus Alabama, are the holdouts in performing same-sex marriages.

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