Seeking a Same-Sex Marriage Case Fit for History

Next Monday, the U.S. Supreme Curt will have its first meeting to consider which same sex marriage case, if any, to take up when its new term commences in October.  For obvious reasons, I'd like to see the challenge to Virginia's animus inspired Marshall-Newman Amendment be the vehicle chosen not only because of the historical precedent of Loving v. Virginia, but also because the case transcript is full of anti-gay animus fueled statements by individuals like homophobe extraordinaire Del. Bob Marshall and tortured self-loathing closet case Ken Cuccinelli.  An article in the New York Times looks at the competing cases and attorneys.  Here are excerpts:

The jockeying among the titans of the Supreme Court bar for a place at the lectern when the justices hear the next same-sex marriage case is as understated as it is unmistakable.

In a half-dozen briefs filed in recent weeks, some of the best lawyers in the nation spent many pages arguing that their case was the right one in which to establish a nationwide right to same-sex marriage. They pointed out the attractive features of their own cases and the shortcomings of others.

In legal jargon, streamlined cases without procedural pitfalls are said to be good vehicles. That made the fancy lawyers sound a little like car salesmen.

The case from Virginia, one brief said, is “an excellent vehicle.” The one from Wisconsin, said another, is “an ideal vehicle.” The one from Utah, perhaps the leading candidate, was said to be, with the swagger of understatement, “an appropriate vehicle.”

The battle is for a place in the history books.

“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,” Mr. Wolfson said.

The lawyers challenging the same-sex marriage bans are confident they will win in the Supreme Court, which is why they have all urged the justices to hear their cases even though they had won in the lower courts.

The justices will consider whether to hear one or more of the cases at their first private conference of the new term, next Monday, and they may announce their choice or choices in the following weeks. If they do, they could hear arguments this winter and announce a decision by June.

Theodore B. Olson, a former United States solicitor general in the administration of George W. Bush, argued that case for the challengers of the California ban, and he is now one of the lawyers challenging Virginia’s ban. As before, he is joined by David Boies, his adversary in Bush v. Gore, the 2000 decision that delivered the presidency to Mr. Bush.

Virginia, he pointed out, was home not only to several of the giants who wrote the Constitution but also to Mildred and Richard Loving, who successfully challenged the state’s ban on interracial marriage in Loving v. Virginia in 1967.  “It’s pretty potent stuff,” he said of his case’s connection to another civil rights movement.

A second set of challengers is also involved in the Virginia case. Their lead lawyer is Paul M. Smith, who argued Lawrence v. Texas, the 2003 decision that struck down laws making gay sex a crime. That team also includes lawyers from the American Civil Liberties Union and Lambda Legal.

Mr. Smith told the justices that “the collective experience of counsel” in the two Virginia challenges mattered, as their groups “have litigated every major gay rights case decided by this court” from 1996 on.

There are two sets of plaintiffs, too. Mr. Olson represents two gay couples. Mr. Smith represents a class of gay couples who seek to marry.

Hearing the Virginia case, he told the justices, would “enable the court to resolve all aspects of the marriage-equality question in a single opinion without leaving lingering questions and uncertainty for lower courts, states and the American public.”  On this, at least, the lawyers in the Utah case agreed. “Piecemeal review risks that litigation will drag on for years,” they wrote.

The justices need to pick a case or cases and they need to end religious based discrimination sooner as opposed to later.