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April 14, 2010

Will the U.S. Supreme Court overturn gay marriage in Vermont?

Marriage This week, Vermont will host a national conference taking stock of the decades-long civil rights battles of gays and lesbians and where the movement is headed.

Appropriately, the conference is being held 10 years after Vermont enacted civil unions and one year after it approved same-sex marriages—the first state to enact such a law by legislative fiat, and it happened thanks to an override of a gubernatorial veto. The law went into effect on September 1.

The conference, titled "The Law and Politics of Marriage Equality: Vermont, The Nation and the World," is free and open to the public. It will be held at two venues: Vermont Law School and the University of Vermont.

The conference will start at VLS on Thursday with a keynote address at 4 p.m. by Andrew Koppelman, a professor of law and political science at Northwestern University. His address, titled “Careful with that Gun: The New (?) Arguments Against Marriage Equality,” will explore how religious conservatives have retooled their opposition to same-sex marriage.

The conference then moves to UVM and continues on Friday at 9 a.m. with a day-long series of panel discussions on civil unions, legal marriage, parenting rights, religious politics and other national, international and New England issues, plus a look back at Baker v. State and the landmark litigation, legislative debate and law that resulted in civil unions in Vermont.

A key question in the back of many minds is the one posed in this post's headline. The answer?

A repeal of Vermont's legislation isn't likely, but some advocates are worried that victories like the one that happened here last year — allowing gays and lesbians to marry — may become more difficult to gain if the U.S. Supreme Court rules against them.

Other conference speakers will ask which efforts have more impact—court actions or state-by-state legislation.

"From my perspective, all the strategies are in play all the time," said Mary Bonauto, the civil rights project director of Gay and Lesbian Advocates and Defenders. Bonauto was one of the lawyers who argued the original Baker v. State case that paved the way for civil unions in Vermont.

"We can't afford to have one approach or leave it to one branch of government and talk about the underlying issues facing gays and lesbians," said Bonauto, who is now arguing a case in a Massachusetts federal court that she hopes will erase a provision of the Defense of Marriage Act defining marriage as between a man and a woman.

Arguments will be heard in the case on May 6. This case, unlike the one in California that argues that same-sex marriage is constitutionally protected, rests on the simple premise that federal law cannot discriminate among married people. Bonauto's clients are married in Massachusetts but are not afforded certain federal benefits and rights because of DOMA, including retiree and income tax benefits.

"By inserting that one definition, it changed 1138 laws without a lot of thought, and we think that's unconstitutional and no justification for it," said Bonauto.

Bonauto added that advances in GLBT rights will resemble past civil rights advances, some of which were legislative while others came through the courts, such as the U.S. Supreme Court ruling overturning bans on interracial marriage.

The constitutional protection question is currently moving up through the federal courts in California.

Ilona Turner, a staff attorney for the National Center for Lesbian Rights in San Francisco, worked on the original marriage equality case that won before the California Supreme Court — Perry v. Schwarzenegger— and led to Proposition 8. Prop. 8 reversed the decision of the courts to allow same-sex marriage.

A couple has now taken the state to federal court in hopes of overturning Prop. 8 on constitutional grounds. Both sides in this case have said they will appeal the case all the way to the U.S. Supreme Court.

Turner is concerned that the U.S. Supreme Court could decide in favor of keeping the ban in California and, in the process, rule that the U.S. Constitution does not protect gay and lesbian rights when it comes to marriage. She also said the court could rule more narrowly and decide that California voters were within their rights to overturn the court ruling. Or, as she and others hope, the court could rule that bans on marriage are unconstitutional, and thereby strike down bans across the country.

"It's hard to predict, especially because any decision from the U.S. Supreme Court is at least a few years away," said Turner. "The effort now is to put the issue of marriage equality back on the ballot in 2012."

Turner said the state-by-state approach could help buttress the plaintiff's case nationally, especially if, by the time the case reaches the Supreme Court, more states have enacted same-sex marriage laws.

Still, it's difficult to find a source of hope in the conservative-leaning Supreme Court.

"Our keynote speaker for the conference sees trouble counting to one and is not sure a single justice would vote in favor of the plaintiffs in the Supreme Court," said Gregory Johnson, a VLS professor. "This might be a bad loss for the gay rights movement."

That said, a U.S. Supreme Court loss wouldn't necessarily wipe out victories in state courts or state legislatures, which is why those state-by-state efforts could help buttress the federal cases, said Turner and Bonauto.

"No court has said there is no federal right to marry, and states are free to enact laws, and state courts are free to look at their own constitution and decide on a case-by-case basis as to whether gays and lesbians should be treated equally," said Turner. "What Vermont did, or any other state, should absolutely continue no matter what the federal Constitution does or does not require, because this case is not asking whether a  state is forbidden from granting marriage equality. That's always going to be up to the state."

Associate Professor Felicia Kornbluh, director of the UVM Women's and Gender Studies Program, said the conference will draw leading scholars and advocates who will use the Vermont anniversaries as launch pads for considering social and legal changes made in the area of marriage equality.

“They are particularly interested in considering the role of judges and courts in creating change as compared to legislatures, nongovernmental advocacy organizations and grassroots protests,” Kornbluh said. “They will compare Vermont to other states, will consider the politics of marriage equality at the national level and will compare the U.S. to other countries.”

Currently, 42 states have laws or constitutional amendments banning gay marriage.

"The question is whether the Supreme Court is ready to invalidate the laws of 42 states that have invalidated marriage for only gays and lesbians," said Bonauto.

On the flip side, five states have legalized gay marriage: Connecticut, Iowa, Massachusetts, New Hampshire and Vermont, along with the District of Columbia.

Three states recognize same-sex marriages from other states: Maryland, New York and Rhode Island.

Five states have adopted civil unions: California, Nevada, New Jersey, Oregon and Washington.

Finally, five states have some form of reciprocal benefits or domestic-partner-benefits allowances: Colorado, Hawaii, Maine, Maryland and Wisconsin.

The VLS and UVM scholars plan to use the conference to produce a book for a leading academic press.

probably not

Many people who support gay marriage, myself included, believe the Olson/Boies lawsuit is foolhardy given the current makeup of the US Supreme Court and has less to do with gay rights than with Olson and Boies attracting attention to themselves.

If their vanity effort ends up setting the gay rights movement back, it will be a big shame.

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