Supreme Court Building (Photo Courtesy: Getty Images)
By Richard Wolf
WASHINGTON - The lawyers challenging federal and state marriage laws as discriminating against gays and lesbians say a major challenge at the Supreme Court next week may be convincing the justices not to sidestep the fundamental issues.
Exuding confidence in their arguments, lawyers for two gay and lesbian couples seeking to marry in California and a lesbian widow seeking federal marriage benefits in New York say the justices must first agree that the cases belong before them.
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That's in dispute in both cases for a basic reason: The defendants - California and the federal government - are on the same side as the plaintiffs. Both have refused to defend the state and federal laws under siege.
The question of legal standing is particularly dicey in Edith Windsor's challenge to the federal Defense of Marriage Act. Because the 1996 law denies federal benefits to same-sex spouses legally married in their states, she sued the U.S. government.
MORE: Gay marriage case: A long time coming for Edie Windsor
But the government, thanks to President Obama's and Attorney General Eric Holder's belief that the law is unconstitutional, has adopted her side. So the question is: Who's she suing?
The answer, her lawyers say, is still the government, since it has not returned the $363,000 in estate taxes she paid after her spouse, Thea Spyer, died in 2009. Because the Obama administration won't defend the law, the House of Representatives' Republican leadership is doing so.
If the justices decide not to decide, it could mean no relief for married gay couples in nine states and the District of Columbia, at least throughout the Obama administration, Windsor's lead attorney, Roberta Kaplan, said on a conference call Thursday.
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Windsor, she said, would get her money back because a lower court ruled in her favor. But as for other married couples, James Esseks of the American Civil Liberties Union said, "We're going to be in a bit of a quandary, a bit of a mess."
The question of legal standing also applies to the same-sex couples' challenge to California's Proposition 8, a voter referendum that banned gay marriage in 2008. There, the state government under Democratic Gov. Jerry Brown also has refused to defend the statute, leaving Proposition 8 proponents to mount a defense.
There are other ways the justices could avoid a sweeping decision in the California case against gay marriage bans, which would implicate those in 38 other states. It could decide only for California, as the federal appeals court did in tossing out the law, or single out seven other states that allow civil unions but not gay marriages, as the Obama administration did in a friend-of-the-court brief.
Theodore Boutrous, one of the lawyers representing plaintiffs Kris Perry, Sandy Stier, Jeff Zarrillo and Paul Katami, said that would be OK, if not ideal.
"Even if the decision is more narrowly crafted, the domino effect will have begun," he said in a separate conference call. "It will send a strong message that these discriminatory laws violate the Constitution."
David Boies, one of the lead attorneys in the case along with former U.S. solicitor general Theodore Olson, made clear the argument in court will be that same-sex marriage should be permitted nationwide. If the justices issue a more narrow decision based on constitutional grounds, he said, "That would simply put off ... the broader decision."