Cooper & Kirk's Charles Cooper
Photo: Diego M. Radzinschi / NLJ
The historic constitutional test of gay marriage rights unfolds on March 26, when the U.S. Supreme Court takes up California's same-sex marriage ban, a case in which opponents to the ban seek not a narrow victory, but full participation by gay couples in the fundamental right to marry.
More than 40 years have passed since the high court faced its first and only same-sex marriage challenge, one brought by Minnesotan Richard James "Jack" Baker. The justices, without comment, dismissed Baker v. Nelson for want of a substantial federal question. There is little doubt that the Roberts Court will have much more to say, and what it says could well define the court for years to come.
The California case, Hollingsworth v. Perry, is the first of two arguments. A challenge to the federal Defense of Marriage Act, Windsor v. U.S., follows on March 27. That the stakes are high can be seen in the outpouring of amicus briefs, nearly 100 in Perry and close to 80 in Windsor, spanning the political, legal, religious, social, business and labor spectrums.
Proponents of California's Proposition 8 lost in the lower federal courts and now ask the justices whether the 14th Amendment's equal protection clause permits California to define marriage as the union of a man and woman. But the ban's opponents urge the high court to go beyond a California-specific ruling and to take the major step that, they contend, the Constitution envisions.
The case is rich with difficult legal questions, from the standing of the ban's proponents to defend it to the constitutional standard of review, and it offers multiple off-ramps, or ways, for the justices to resolve the case.
"Regardless of what the Supreme Court decides, it is not going to settle the public debate we have on marriage any more than it settled the debate on abortion," said Austin Nimocks, senior counsel to the Alliance Defending Freedom, co-counsel to the Prop. 8 proponents in Perry. "And that is why we feel very strongly the Supreme Court should not impose a 50-state solution upon the country and should allow the citizens to continue to debate this and work on it through our democratic institutions."
No matter what the court's ultimate rationale is, "the arguments in support of [gay marriage] restrictions have been thoroughly dismantled," said Prop. 8 opponents' co-counsel David Boies of Boies, Schiller & Flexner, noting their success in the trial and appellate courts. "We believe a 50-state result is the right result under the due process clause and the equal protection clause."
THE ISSUES
As he has done in each court since the initial lawsuit against Prop. 8 was filed four years ago, Charles Cooper of Cooper & Kirk will defend the state marriage ban as well as the standing of his clients before the justices on March 26.
His clients include the official proponents of Prop. 8 — ProtectMarriage.com, a ballot measure committee led by Dennis Hollingsworth. They intervened to defend the ban after California officials refused to do so. Besides Nimocks, Cooper also has as co-counsel Andrew Pugno, counsel to ProtectMarriage.com.
Cooper will face Theodore Olson of Gibson, Dunn & Crutcher, who, along with Boies, was hired by the American Foundation for Equal Rights to bring the lawsuit challenging Prop. 8. They represent two couples, Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrillo. The city and county of San Francisco also intervened at trial as plaintiffs and they are represented by City Attorney Dennis Herrera. Olson will make arguments on their behalf.
The United States has entered the case on behalf of Prop. 8 opponents. Solicitor General Donald Verrilli Jr. will share argument time with Olson.
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