They sat in their offices last week, eyes and ears focused on laptops. For a short time, at least, their own practice took a back seat to national events, as they focused on two days of historic hearings before the U.S. Supreme Court.
Like millions of Americans, they followed the streaming audio online and the running commentary on blogs and on television. But unlike most people, the Connecticut lawyers who had been involved with same-sex marriage cases and other aspects of LGBT law were looking to read between the lines and see which way the justices were leaning in regards to California’s Proposition 8, which bans same-sex marriage in that state, and the federal Defense of Marriage Act, which defines marriage as being between one man and one woman and bars gay couples from enjoying federal marriage benefits.
"In general for me, and I hope for other lawyers, it’s a feel-good day for me," said Barry Hawkins, president of the Connecticut Bar Association, who last year had urged the CBA to join an amicus brief for one of the cases that made it to the high court. "The Supreme Court is hearing arguments that are really affecting a whole lot of people. We’ve witnessed one of the most remarkable turnarounds of social policy ever. Since DOMA was passed in 1996, people have asked for it to be repealed. And it’s being argued by the highest court. It’s an exciting moment."
The historic significance of the two cases was not lost on Proloy Das, an appellate lawyer with Rome McGuigan in Hartford.
"You could teach an entire constitutional law class based on these cases; they have a little bit of everything," Das said. "Standing questions: who has the right to bring suit and who has the right to appeal? A federalism dispute: do states have the exclusive right to define marriage or is there a constitutional basis for a federal definition? A separation of powers issue. And, of course, equal protection — are gay and lesbian couples a suspect class afforded the same heightened scrutiny as with race and gender?"
Depending on how the court rules, Das said the case is likely to stand out as an important historic event. "This has the potential to be the most important equal protection case since Loving v. Virginia," he said, referring to the 1963 landmark civil rights decision that invalidated laws prohibiting interracial marriage.
Also following intently was Kenneth James Bartschi, an appellate lawyer at Horton, Shields & Knox in Hartford. He had helped to draft appellate briefs in the Kerrigan v. Commissioner of Public Health case that paved the way for same sex-marriage in Connecticut in 2008. More recently, he represented the plaintiffs in Pedersen v. Office of Personnel Management as a co-counsel with Boston-based Gay & Lesbian Advocates & Defenders. In a decision issued last August, a federal judge in Connecticut agreed that DOMA violates the U.S. Constitution’s due process guarantees.
Last week’s U.S. Supreme Court arguments left Bartschi with a number of fleeting impressions, but no confident predictions.
At the some points, Bartschi said, members of the court appeared poised to affirm the U.S. Court of Appeals for the Second Circuit, which last year, in a case called United States v. Windsor, ruled that DOMA violated the Constitution’s due process clause.
At other times, he wasn’t as sure. He was interested in how, from their questions, some of the justices seemed interested in the political strength of gay and lesbians as a group. That could be a sign that the justices didn’t think gay and lesbians needed special constitutional protections.
And then there were questions about federalism, mostly from the conservative justices, aimed at whether states or the federal government should have the last word on marriage laws. In the end, Bartschi made a common observation about the high court: "You have to be careful not to read too much into" the questions the justices ask," Bartschi warned.
And even if they do decide to strike down DOMA, "it’s hard to say how a decision in this case will affect future cases in your practice," Bartschi said. "This is an important constitutional question and our firm has been involved in litigation in that area for a long time. I’m really interested in how things play out under the federal Constitution, and this really is the civil rights issue of the moment."
Brian Rice, a former McCarter & English attorney who now works for RailWorks in New York City, has been active in legal issues surrounding same-sex marriage in Connecticut. As one of the state’s first people to marry a same-sex partner, Rice testified in the Kerrigan case and worked on amicus briefs in the Windsor case.
One issue that he found interesting was the possibility, though slight, that the court could rule the issues as moot. Because the Obama administration has opted to no longer defend DOMA, the court could decide that no ruling is needed. "If that happened, you would probably see lawsuits filed from the other side," which could seek to have the executive branch enforce the statute, Rice said.
Currently, a group of Republican members of Congress, called the Bipartisan Legal Advisory Group, has hired private attorneys to defend the federal marriage statute. They have argued that same-sex couples don’t require the same level of constitutional protection as people discriminated against based on race, religion or national origin.
Another attorney who was paying attention to the case was Virginia McGarrity, an attorney with Robinson & Cole in Hartford in the Employee Benefits and Executive Compensation practice group. Throughout the week, McGarrity read blogs and news stories about the arguments and reviewed the transcripts. "A majority of the justices raised questions about the legitimacy of preventing same-sex couples, married according to state law, from receiving federal benefits," McGarrity said.
Although she has not been directly involved in any same-sex marriage lawsuit, McGarrity noted that virtually all areas of her federal employment practice will be affected by the decision. "DOMA has a huge impact for my practice and for my clients," she said. "There are over a thousand federal laws that refer to marriage and spouse. It broadly touches employee benefits, social security, Medicare, its everywhere."
As an example, McGarrity pointed to the Family Medical Leave Act. "The FMLA allows an employee to take leave to care for the employee’s spouse, son, daughter or parent with a serious health condition," she said. "’Spouse’ has a specific definition under the FMLA. However, DOMA does not recognize same sex marriages; therefore, federal FMLA leave is not available for same sex partners/spouses."
If the portion of DOMA that denies same-sex couples federal tax and other benefits is held to be unconstitutional, McGarrity expects a lot of questions will be raised about how the law will be applied. "If Section 3 of DOMA is unconstitutional, then the administrative process of retroactively correcting the denial of federal benefits to legally married same-sex couples will be challenging for many employers and individuals," she said.
If the court’s decision applies retroactively, she said, "employers and individuals will need guidance from numerous federal agencies including the Internal Revenue Service and Social Security Administration."
Bartschi sees the impact of being even more far-reaching.
"One of the questions the court can decide in this case is what level of scrutiny will be afforded to laws based on sexual orientation," Bartschi said. Part of the review will consider to what extent gay people have been subjected to extensive discrimination.
Following this case is a good way to sharpen your understanding of constitutional law, he said. "The next time we get an equal protection case over a claim of discrimination in one form or another, we will certainly be looking to [what] the Supreme Court" does in this case.•