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Gay Marriage: Where Do We Stand?
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Gay Marriage: Where Do We Stand?

SummaryAttorneys on both sides of the gay marriage ban argument are fighting ferociously for their clients’ positions. The Supreme Court will soon decide which cases, if any, it will hear to determine how gay marriage will be impacted nationally.

Gay marriage has been a hot topic in the news lately, with many federal courts overturning bans on gay marriage. However, there are many attorneys who still fight against gay marriage, according to the National Law Journal. In fact, a year after Massachusetts declared that the right to same-sex marriage was constitutional, an attorney in Idaho created the Marriage Law Foundation to stop such laws from being created elsewhere.


In 2014, the trend continues. Monte Stewart, of the Boise firm Stewart Taylor & Morris, is still fighting against same-sex marriage. A group of lawyers–some Mormon, like Stewart—see it as their personal mission to stop gay marriage, as opposed to a job requirement. Other attorneys feel that the state’s voters or legislatures must have their laws defended. Some enjoy the challenge of the legal issues involved.

Stewart was a major player who advocated for Utah’s amendment that banned same sex marriage. The governor even asked him to defend the ban when it was first challenged. Gene Schaerr, a Mormon from Utah, took over the defense after leaving a partner position at Winston & Strawn, and John Bursch, the former solicitor general of Michigan, took over once the case was pending before the Supreme Court.

Stewart also represents the Coalition for the Protection of Marriage in the defense of Nevada and Idaho’s gay marriage bans.

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In 1994, 30 evangelical Christians founded Alliance Defending Freedom. This group defends state bans on gay marriage and was based in Arizona. Alan Sears, a former Reagan Justice Department attorney, leads the group. It is self-described as an “unique legal ministry” which sets out to defend marriage, family, the sanctity of life, and religious liberty. There are 44 staff attorneys and close to 2,200 “allied” attorneys across the country. Such attorneys serve as lead counsel in federal cases in Virginia, Oklahoma and Hawaii. In addition, they serve as amicus counsel in many others.

Senior legal counsel Austin Nimocks said, “It’s quite clear the number of lawyers advocating same-sex marriage vastly outnumbers those of us defending marriage. It’s clear the challenges and pressures have mounted over the years in terms of providing defenses to those lawsuits.”

Alliance Defending Freedom also has international ties, and even has a nongovernment organization status at the United Nations. It was responsible for the filing of a lawsuit that challenged Massachusetts’s abortion clinic buffer zone, which made it to the United States Supreme Court (McCullen v. Coakley). Other cases the group has argued before the Supreme Court include a contraceptive insurance case (Conestoga Wood v. Burwell) and a government-prayer case in which the group represented the Town of Greece, New York. This term, the Supreme Court Justices will hear argument from the group as they present a First Amendment challenge to a city’s sign ordinance on behalf of a local church.

S. Kyle Duncan was responsible for breaking the trend of striking down gay marriage bans. He won the recent Louisiana case that upholds that state’s ban on gay marriage. Duncan previously served as Louisiana’s solicitor general from 2008-2012, after which he started as general counsel at the Becket Fund for Religious Liberty. He also served as lead counsel for Hobby Lobby during its same-sex litigation.

Duncan feels that the victory in Louisiana court prompted George Schaefer, the circuit court clerk in Norfolk, Virginia, to seek out Duncan to defend Virginia’s ban. That case, Schaefer v. Bostic, is one of three Virginia cases pending in the Supreme Court. Duncan does not want to be categorized as a specific type of attorney because of his work: “I’ve been in government practice for most of my career. I’d take just about any kind of case now. What drives me is the issue.”

The New York Times weighs in on the other side of the argument. In the past few weeks, some of the country’s top attorneys have filed briefs, fighting to show that the clients they represent will serve as the best case to establish a national right to same-sex marriage. They highlighted the best features of their own cases, while establishing the weaknesses of others.

James A. Campbell, an attorney with Alliance Defending Freedom, commented on the arguments of the attorneys: “As I would read their briefs, I would write in the margin: ‘That’s an implicit dig at this case’ and ‘That’s a dig at that case.’” Campbell will defend bans on same-sex marriage in Oklahoma and Virginia. The attorneys fighting against the ban, though they won in lower courts, are eager for the Supreme Court to hear their cases as they feel victory is certain.

Evan Wolfson, the president of Freedom to Marry, said that a victory for same-sex marriage would be the result of a group effort that has been decades in the making. “Every attorney in the world, it seems, is now eager to be the one that stands before the court in the freedom to marry case, but what really counts is the compelling collective presentation we will all make, no matter which case it is.”

The Supreme Court justices will decide whether they will hear any of the cases on next Monday during their first private conference of the new term. If so, arguments may be heard by winter and a decision announced by June.

Theodore Olson served as a former United States solicitor general during the presidency of George Bush. Olson argued in the case that challenged the California ban. He stated that his case was the best one to present to the Supreme Court because it includes a class action, and addresses not only the right to marry, but whether states must recognize out-of-state same sex marriages. However, regardless of which attorney’s case is picked, the most important goal is a victory: “We have great respect for the lawyers in the other cases, and we would be quite supportive of them if that’s what the justice want to do.”

Another group of challengers, including lead lawyer Paul Smith, is involved in the Virginia case. Smith argued that “the collective experience of counsel” in the two Virginia challenges was essential, since their groups “have litigated every major gay rights case decided by this court” since 1996.

However, many outsiders feel that a Utah case should be selected by the justices. Roberta A. Kaplan, who last year successfully argued a challenge to the federal Defense of Marriage Act, stated, “Maybe if they want to be neutral they’ll pick Utah just because they were first.” The case, Herbert v. Kitchen, was the first to overturn a gay marriage ban after Kaplan’s victory. In addition, it is not as complex as the Virginia case. The Virginia case includes three separate petitions from government officials who request a review of the appellate court’s ruling. One petition seeks to have the ban overturned, whereas the other two seek to have it upheld. Two sets of plaintiffs, gay couples and gay couples who seek to marry, are also involved. In contrast, the Utah case has “just one set of plaintiffs and one set of respondents.”

Olson, however, feels that the intricacies in his case are necessary, as “all sides of this important issue would be vigorously represented.” Because there is a class-action aspect to the case, he explained “there is no risk that this case would become moot—due for instance to the unforeseen end of a couple’s relationship—during the pendency of this appeal.”

Sharon P. Minter, a lawyer with the lesbian rights center, argued for the Utah case. “The obvious thing about the Utah case is that it is being defended by state officials. It’s a very clean vehicle.” He did add, “We’re long past the point where it would matter which case or which lawyer.”

Jeffrey L. Fisher, who is a law professor at Stanford, represent the challengers to Oklahoma’s ban. Fisher spent 11 of 32 pages showing that his case was the right one and should be included in the Supreme Court’s arguments. His case is straightforward, he writes, because its only question is whether Oklahoma must allow same-sex marriages to be performed in that state. The other cases are not so simple, he explains: “Some of the plaintiffs from the Utah and Virginia cases, by contrast, raise another claim,” including whether they must recognize marriages performed elsewhere.

The attorneys now will just have to wait and see what the Supreme Court decides to do. No matter the outcome, both sides of the argument certainly have skilled, competent counsel vehemently defending their positions.

Photo credit: The Missouri Times



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