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Caution in Court for Gay Rights Groups

By ADAM LIPTAK

The New York Times
November 12, 2004

Fearful that aggressive action could backfire and generate public hostility, gay rights groups are planning to limit the scope of their legal challenges to the constitutional amendments banning gay marriage that were passed by 11 states last week.

The groups are making a temporary retreat from their most fundamental goal, winning the right for same-sex marriages, and focusing instead on those measures that addressed civil unions in some way. The groups say that broader suits seeking the right to marry could add fuel to President Bush's efforts to create a federal prohibition on gay marriage. Many of the state amendments passed by overwhelming margins, and Karl Rove, the architect of Mr. Bush's re-election, said this week that there was a broad national consensus that marriage is between a man and a woman.

So challenging the new state amendments by arguing that gays have the right to marry under the federal Constitution is unlikely anytime soon. Instead, gay rights groups will move cautiously, mostly on procedural matters in states whose measures appear to infringe on civil unions and benefits for same-sex couples.

Matthew Coles, the director of the American Civil Liberties Union's lesbian and gay rights project, said that groups like his would adopt a measured pace in filing lawsuits.

"The consequences - the risks - of losing are great," Mr. Coles said. "And we're unprepared for the consequences of winning." In his eyes, he said, winning in court too soon could mean losing in the court of public opinion, in Congress and under the United States Constitution.

The challenge now, gay rights leaders said, is to change public attitudes.

"There is no putting lipstick on this pig," said Matt Foreman, who is the executive director of the National Gay and Lesbian Task Force and who will give the keynote address on Friday morning at the group's conference in St. Louis. "Our legal strategy is at least 10 years ahead of our political and legislative strategy."

His adversaries also expect that court cases will embolden their ranks. Mathew D. Staver, president and general counsel of Liberty Counsel, a public interest law firm that represents religious causes, said that challenges in the federal courts were losing propositions for gay rights groups - whatever their outcomes.

"If the same-sex marriage advocates win," Mr. Staver said, "that will be like pouring gasoline onto the fire for purposes of the federal marriage amendment."

Even without such litigation, he said, work would continue for more gay marriage bans at the state and federal levels. The 11 states that passed the amendments join a handful of states that had previously done so, including Louisiana and Nebraska, where challenges are pending.

"You may see as many as 20 more state constitutional amendments in the next two years," Mr. Staver said. "And you'll see an accelerated effort to move forward with a federal constitutional amendment because of the marriage and morality mandate the president received in the election."

In some ways, the new amendments are mostly symbolic, gay rights advocates say. About 40 states already have so-called defense of marriage statutes, including 10 of the 11 that passed amendments last week. The amendments make it more difficult to overturn those laws, but may add little substance.

Gay rights groups also said they had not expected to win in the 11 states, with the possible exception of Oregon.

"If you take out Ohio, Michigan and Oregon," Mr. Coles said, "these are deeply conservative places where everyone agrees it will be many years before there is any recognition of same-sex relationships."

Gay rights advocates said they would pursue two kinds of relatively oblique challenges to the amendments because they present low risks. Some of the amendments, they say, violated state laws on how questions are presented to voters; others are simply unclear.

Eight of the 11 new state amendments address both gay marriage and civil unions. But several of those states require that ballot initiatives consider a single issue at a time. Amendments that bar both gay marriage and civil unions arguably run afoul of such requirements.

Furthermore, surveys of voters leaving the polls suggest that many who disapprove of gay marriage are not opposed to civil unions, and the combined question did not allow that compromise.

A judge in Louisiana struck down an amendment passed in September on that ground; the state's Supreme Court will soon hear the case. Groups supporting gay marriage say they have filed or will soon file similar challenges in Arkansas, Georgia and Oklahoma.

But even the prospect of winning such procedural challenges may give gay rights advocates difficult tactical choices.

"It's a limited victory," said Andrew Koppelman, a law professor at Northwestern University. "It's on the ballot the next time. There are strategic questions: Do you really want same-sex marriage on the ballot again the next time?"

A second kind of relatively low-risk lawsuit would seek clarification of ambiguous language. The language in the Ohio amendment, for instance, said David Buckel, the director of the marriage project at Lambda Legal, a national gay rights group, "really makes you scratch your head."

The amendment says the state "shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance or effect of marriage."

"We presume that this law will be interpreted to be as harmful as it can be to gay families," Mr. Buckel said, citing the possibility that the law could, for instance, bar a member of a gay couple from visiting his or her partner in the hospital. "We will be filing suit to seek a narrowing construction of the law."

Questions concerning whether states and their agencies, including state universities, may continue to offer health insurance to gay partners are likely to arise in Ohio, Michigan and Utah, legal analysts said.

Mr. Foreman said, "People are deluging us with calls about whether they are going to lose domestic partnership health benefits, about whether they can complete the adoption of a child, about whether they have to change their living wills."

The amendment that passed in Oregon will probably not void the 3,000 marriage licenses issued to same-sex couples in the state in March, legal analysts said. But those licenses are in jeopardy for other reasons, and the Oregon Supreme Court is considering the matter.

For now at least, gay rights groups say filing suit in federal court arguing that the new amendments violate the federal Constitution would be treacherous.

"This area of constitutional law, it's really not an exaggeration to say, is in its infancy," Mr. Coles said. "That leaves a lot of leeway for hostile or timorous judges to rule against you. When the law develops better and when attitudes begin to change, if you pile up losses now, it's much harder to get courts to take things back later."

Moreover, victories in the lower courts, he said, are unlikely to be sustained on appeal.

Legal scholars say that the Supreme Court is not prepared to recognize a constitutional right to gay marriage.

"I don't think the court is ready to go there yet," said Douglas Laycock, a law professor at the University of Texas at Austin, "and with Bush appointing new Supreme Court justices it's even less likely."

Even a long-shot Supreme Court victory could be fleeting, Mr. Coles said.

"If the U.S. Supreme Court in the near term says that the United States Constitution requires same-sex marriage or that states can't protect themselves from same-sex marriage," he said, "the likelihood of the federal constitutional amendment is great. I also think it would set off a barrage of bad legislation in Congress."

The upshot of the election, Professor Koppelman said, is that the forum for the debate over marriage has shifted.

"The gay marriage issue is being fought primarily in the culture," he said, "not in the courts."

 

 
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