While the high-profile, Ted Olson- and David Boies-managed legal fight against California's Proposition 8 captures headlines, a carefully planned case quietly under way in Massachusetts federal court could be the gay marriage test with the greatest national impact.
The challenge, Gill v. Office of Personnel Management, is one of four lawsuits in different parts of the country that ask federal courts to strike down all or parts of the 1996 federal Defense of Marriage Act (DOMA). The suits, and the Gill case in particular, according to advocates and scholars closely watching their progress, are just the opening shots in a struggle destined for the U.S. Supreme Court.
"If you're looking to effect legal change, you're looking for plaintiffs who have been harmed, a lawsuit reasonably well-funded, and the legal expertise to take it up [to] the appellate process," said Arthur Leonard of New York Law School, an expert on gay and lesbian legal issues. The Gill case meets that description, he and others believe.
For the Obama administration, Gill and the three other suits present potentially treacherous legal and political waters. It has decided to defend the law in court even as it has stated publicly its plans to seek repeal in Congress. And its arguments in defense of the law, recently revealed in a California suit, have pleased neither opponents nor supporters.
The lawsuits ultimately confront the courts in general, and the Supreme Court in particular, with a question of "institutional competence," said Michael Dorf of Cornell Law School. He asks if the courts should defer to Congress' expertise on an issue with so many political and social ramifications.
"Is it right for the court to do what's being asked [in these suits], is it right for the court to do this now, and after they answer that, what will be the individual justices' reactions to the substance of the claims?" he said.
The 1996 law has two substantive parts: Section 2 permits states to ignore the same-sex laws or policies of other states; Section 3 defines marriage as the legal union of a man and a woman for purposes of all federal laws and programs related to marriage.
Of the four lawsuits -- Gill and a suit filed in July by Massachusetts Attorney General Martha Coakley, and one each in California and Oklahoma -- the Massachusetts cases are the most promising for the law's opponents, say some constitutional scholars. Unlike the other cases, they said, the Massachusetts suits are well-focused, well-financed and highly lawyered.
GLAD -- Gay & Lesbian Advocates & Defenders -- is the driving force behind the Gill case. The legal organization, which won the landmark 2003 Massachusetts Supreme Judicial Court decision permitting same-sex marriage, has drawn support and expertise in its case from four major law firms: Foley Hoag of Boston; Sullivan & Worcester of Boston; Kator, Parks & Weiser of Washington, D.C.; and Jenner & Block of Chicago (including partner Paul Smith, who successfully argued the last major gay rights victory in the Supreme Court: Lawrence v. Texas in 2003).
GLAD Legal Director Gary Buseck said the Gill case is a "pretty simple, mainstream equal protection case." Its target is Section 3, which restricts federal benefits to those in traditional marriages only.
"Our basic conception is Massachusetts has one class of married people," he said. "It issues the same license and registers all couples in the same registry. That one, undivided class is then broken into two pieces by the federal government, which says one part of that group is entitled to every benefit and responsibility under federal law and one part is treated as never married."
GLAD argues there is no justification for that unequal treatment. "Under our system of dual sovereignty, it has been recognized across the spectrum that the law of marriage and domestic relations belongs to the states and the federal government has always accepted what the states have said about it," Buseck said.