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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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