Advocates who have relentlessly prepared for Tuesday’s court debate on same-sex marriage recognize that more than one outcome could benefit their cause. “But some roads are better than others,” says one lawyer.
WASHINGTON — In the months leading up to Tuesday’s Supreme Court arguments on same-sex marriage, teams of gay-rights lawyers and their allies have held countless strategy sessions, drafted scores of briefs and participated in moot courts.
Their relentless preparation has two goals. One is to win. The other is to win big.
“Many roads lead to marriage,” said Susan Sommer, a lawyer with Lambda Legal. “We would be incredibly thrilled to reach that goal. But some roads would be even better than others.”
The lawyers scoured the transcripts of arguments in earlier gay-rights cases, honing answers to questions that had thrown other lawyers. They visited the Supreme Court, taking in the rhythms of the questioning and assessing the justices’ habits of mind.
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At the moot courts, they peppered the two lawyers who will argue for their side with tough, sarcastic questions modeled on the ones Justice Antonin Scalia is prone to asking.
Should the Supreme Court rule that there is a constitutional right to same-sex marriage, as many expect it to do, the decision could be narrow or broad. Gay-rights groups are hoping to secure not only the right to marry but also a symbolic and practical victory that would transform the status of gay Americans, protecting them from other kinds of government discrimination.
There are many ways to write an opinion in favor of same-sex marriage. The justices can choose between two commands to the states, two constitutional provisions and two levels of constitutional scrutiny.
When the Supreme Court agreed to hear four cases challenging bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, it took the unusual step of drafting two questions: The first is whether states must allow same-sex couples to marry, which will be the subject of a 90-minute debate Tuesday. The second is whether states must recognize same-sex marriages performed elsewhere, which will be debated for an additional hour.
As a practical matter, a positive answer to either question would effectively allow all same-sex couples to marry. But gay-rights groups want to establish a right to marry in every state, and they worry that the court may settle for the incremental step of requiring states to honor marriages from outside their borders.
“While many can travel to another state to marry, others lack the good health or financial means to do so,” Walter Dellinger, a former acting United States solicitor general wrote in a brief he filed on behalf of Freedom to Marry. “For such couples, denying a license in the state in which they reside amounts to an outright denial of the freedom to marry.”
Dellinger added that the half-measure of requiring states to recognize out-of-state marriages would carry with it a “badge of inferiority.”
Solicitor General Donald Verrilli Jr., the Obama administration’s top appellate lawyer, will urge the justices to strike down the marriage bans. But his position is more measured than that of the plaintiffs.
In his Supreme Court brief, Verrilli pressed arguments in favor of same-sex marriage based solely on equal-protection principles, while gay-rights advocates have also advanced the argument that marriage is a fundamental constitutional liberty guaranteed to all couples.
The Constitution’s equal-protection clause requires the government to have reasons for treating people differently. Its due-process clause protects some fundamental liberties, including those listed in the Bill of Rights, procreation, sexual intimacy, abortion and at least opposite-sex marriage.
Mary Bonauto, who will argue on behalf of the plaintiffs Tuesday, said her clients would rather not settle for half a loaf. “We think that both equal protection and liberty are at play here, and they’re both bound up together,” she said.
A decision based on equal protection would have more practical muscle in other areas of the law. But it would be a symbolic blow to gay rights for the court to stop short of saying directly that gay couples have a right to marry.
Gay-rights lawyers are also hoping for another victory, one that would also help their cause in realms beyond marriage. It would require the Supreme Court to take a step it has so far resisted: saying that laws discriminating against gay people are subject to the heightened judicial skepticism that applies to ones drawing distinctions based on race or gender.