Updated: Jan 6
March 23, 2013
Washington -- The political and legal terrain on same-sex marriage is shifting so fast that the choice facing the Supreme Court this week on two momentous cases is whether to delay history or to join it.
The Proposition 8 case from California, scheduled to be argued Tuesday, and the Defense of Marriage Act case from New York, which will be heard Wednesday, are themselves generating a stunning move toward marriage equality.
The cases have flushed out support from the highest levels of American politics, leaving a shrinking circle of opponents who hope the court will stop short of declaring gay and lesbian marriage a constitutional right in all 50 states.
Kris Perry (l to r) and Sandy Stier stand after answering questions from the media during a news conference at the San Francisco offices of Gibson Dunn on Thursday, March 21, 2013. Lea Suzuki/The Chronicle
"We are at a point where the jurisprudence and the arguments opposed to freedom to marry have become almost caricatures - offensive not just to gay people, but to virtually anyone," said Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco.
Supreme Court justices are not immune to public opinion or the cultural context of their rulings, legal scholars said. Polls show record support for same-sex marriage: 81 percent among people younger than 30 and 58 percent overall according to last week's ABC News/Washington Post poll. Prop. 8 banned same-sex marriage in California; the Defense of Marriage Act, or DOMA, denies federal recognition to married same-sex couples.
No justice wants to be attached to an infamous decision like Korematsu vs. United States, which upheld the internment of Japanese citizens in World War II, or Plessy vs. Ferguson, which upheld racial segregation.
"As public opinion has changed, it begins to look more like bias and less reasonable to simply categorically remove same-sex couples" from marriage, said Jane Schacter, a professor of constitutional law at Stanford University. "I don't think the court checks the polls. It's more how court weighs the arguments. As ideas become more familiar, they seem less foreign and radical and odd."
Political opposition to same-sex marriage is melting. Among those who have changed sides in the past two weeks: Bill Clinton, the Democratic president who signed DOMA; former Secretary of State Hillary Rodham Clinton, who refused to endorse same-sex marriage in her 2008 presidential campaign; and Republican Sen. Rob Portman of Ohio, who last week embraced the possibility of marriage for his gay son.
The Obama administration not only refused to defend DOMA but filed a brief arguing that it violates the equal protection clause of the 14th Amendment.
Some conservative opinion-makers are also supporting gays' right to marry. Columnist George Will said last week that the federal government has no business telling states whom they can marry. David Frum and Michael Gerson - speechwriters for former President George W. Bush, who endorsed a constitutional ban on same-sex marriage - signed an amicus brief from more than 100 Republicans supporting Prop. 8 opponents.
Legal experts are widely predicting a win for plaintiff Edith Windsor, an 83-year-old lesbian widow whose marriage was recognized by New York but who was forced by the Internal Revenue Service to pay $363,000 in estate taxes when her spouse died.
If Windsor wins, section 3 of DOMA that prevents federal recognition would be struck down, but it would affect only same-sex couples who married in states that allow it. It would not force any states to recognize such marriages.
The Prop. 8 case is led by David Boies and former Bush solicitor general Ted Olson, who argued on opposite sides of Bush vs. Gore in 2000. Their case is considered a longer shot.
Implication for nation
The lawyers are asking that the high court uphold California court decisions striking down the 2008 voter-approved initiative. They also want the court to find a constitutional right to gay and lesbian marriage under the 14th Amendment's equal protection and due process clauses.
If that were to happen, same-sex marriage would be legal across the United States, including the 38 states that now ban such marriages in their constitutions or by legislation. The court also could produce a narrower ruling that lifts the ban on same-sex marriage only in California.
The Prop. 8 case will be argued 10 years to the day after arguments were presented in the landmark case Lawrence vs. Texas, where the court ruled, in an opinion by Justice Anthony Kennedy, that state sodomy laws were unconstitutional.
The arguments in defense of Prop. 8 and DOMA have changed considerably since the time the laws were enacted, reflecting the change in public attitude. Where it was once argued that the biological facts of procreation obviously limit marriage to straight people, the defense briefs now say marriage exists because heterosexuals beget children irresponsibly.
Marriage exists, they say, to ensure "responsible procreation" among straight people. It is a view of marriage so narrow as to be unrecognizable to most married couples.
"This is an invented justification," said Douglas NeJaime, an associate professor of law at Loyola Law School in Los Angeles. "Clearly this was not the reason for civil marriage, and it's not the reason that gay people have been excluded from marriage, so the advocates are struggling to articulate it."
For years, "the argument against gay marriage was that gay people were too irresponsible to be married," said Dale Carpenter, a pro-gay-marriage law professor at the University of Minnesota. "Now the argument seems to be that heterosexuals are too irresponsible for gays to be married."
The difficulty for traditionalists has always been to show "how excluding same-sex couples from marriage has anything to do with whether heterosexual couples do or do not decide to get married," said Stanford's Schacter. "It's a tough sell. I think that that will be front and center in the Supreme Court oral arguments.
"The best face I could put on it is to say in some highly general way that making clear that the function of marriage is to domesticate men and channel procreation into marriage is somehow undermined by allowing same-sex couples in," Schacter said. "To state that argument is to see what's wrong with it."
Pushing the case
Boies and Olson are representing two couples. Kristin Perry and Sandra Stier of Berkeley were married at San Francisco City Hall in the exuberant days of 2004 when the city declared it would marry gay and lesbian couples. In August of that year, the state Supreme Court ruled that their union and about 4,000 other same-sex marriages in San Francisco were void because the city had no authority to override state law. The other couple is Paul Katami and Jeffrey Zarrillo of Burbank.
"We're sitting here on the cusp of potentially being married again, and we are struck by the importance not only of being married, but of a shift happening in the country that will affect generations to come," said Perry, whose name is on the case now known as Hollingsworth vs. Perry.
When Olson and Boies brought the case four years ago, gay legal activists worried that they were pushing too far, too fast.
Carpenter, who chronicled the Lawrence case in his book "Flagrant Conduct," said if the court were to force the 41 states that do not allow lesbians and gays to marry, including the 38 that have banned it outright, the court risks a backlash from much of the country.
"The last time I can think of that the court struck down a whole lot of state laws on a social issue was 1973 in Roe vs. Wade," which legalized abortion, Carpenter said. "At least some people on the court may think that's not a very good precedent for aggressive judicial action here."
Roe vs. Wade backlash
Liberal Justice Ruth Bader Ginsburg has speculated that the decades-long backlash from Roe vs. Wade might have set back the cause of women's reproductive rights.
Boies said the better parallel is Loving vs. Virginia, a landmark 1967 case that overturned state bans on interracial marriage.
In 1967, "64 percent of the American people thought interracial marriage was wrong," Boies said, compared with less than 50 percent of Americans who now think marriage is wrong for gays and lesbians.
"When that decision came down there wasn't a ripple," Boies said. "Everybody simply accepted it, because they understood and knew it was the right thing to do. The same will be true here."
Carolyn Lochhead was the Washington correspondent for the San Francisco Chronicle, where she covered national politics and policy for 27 years. She grew up in Paso Robles (San Luis Obispo County) and graduated from UC Berkeley cum laude in rhetoric and economics. She has a masters of journalism degree from Columbia University. Twitter: @carolynlochhead