WASHINGTON -- In the months leading up to today's Supreme Court arguments on same-sex marriage, teams of gay-rights lawyers and their allies have held countless strategy sessions, drafted scores of briefs and participated in intense moot courts.
Their relentless preparation has two goals. One is to win. The other is to win big.
"Many roads lead to marriage," said Susan Sommer, a lawyer with Lambda Legal. "We would be incredibly thrilled to reach that goal. But some roads would be even better than others."
Should the Supreme Court rule that there is a constitutional right to same-sex marriage, the decision could be narrow or broad. Gay-rights groups are hoping to secure not only the right to marry but also a victory that would transform the status of gay Americans, protecting them from other kinds of government discrimination.
There are many ways to write an opinion in favor of same-sex marriage. The justices can choose between two commands to the states, two constitutional provisions and two levels of constitutional scrutiny. In every case, gay-rights groups say, the correct decision is both.
When the Supreme Court agreed to hear four cases challenging bans on same-sex marriage in Kentucky, Michigan, Ohio and Tennessee, it took the unusual step of drafting two questions for the parties to address, setting aside argument time for each of them.
The first is whether states must allow same-sex couples to marry, which will be the subject of a 90-minute debate today. The second is whether states must recognize same-sex marriages performed elsewhere, which will be debated for an additional hour.
A positive answer to either question would effectively allow all same-sex couples to marry. But gay-rights groups want to establish a right to marry in every state, and they worry that the court may settle for the incremental step of requiring states to honor marriages from outside their borders.
"While many can travel to another state to marry, others lack the good health or financial means to do so," Walter Dellinger, a former acting United States solicitor general, wrote in a brief he filed on behalf of Freedom to Marry.
But the recognition-only approach may seem attractive to some of the court's more conservative members, notably Chief Justice John Roberts. Such an approach could follow from the court's 2013 decision in United States v. Windsor, which did not compel any states to issue marriage licenses to same-sex couples but did require the federal government to recognize marriages from states that allow such unions.
Solicitor General Donald Verrilli Jr., the top appellate lawyer in President Barack Obama's administration, will urge the justices to strike down the marriage bans. But his position is more measured than that of the plaintiffs.
In his Supreme Court brief, Verrilli pressed arguments in favor of same-sex marriage based solely on equal protection principles, while gay-rights advocates also have advanced the argument that marriage is a fundamental constitutional liberty guaranteed to all couples.
The Constitution's equal protection clause requires the government to have reasons for treating people differently. Its due process clause protects some fundamental liberties, including those listed in the Bill of Rights, procreation, sexual intimacy, abortion and at least opposite-sex marriage.
Mary Bonauto, one of the lawyers who will argue on behalf of the plaintiffs today, said, "We think that both equal protection and liberty are at play here, and they're both bound up together."
A decision based on equal protection would have more practical muscle in other areas of the law. But it would be a symbolic blow to gay rights for the court to stop short of saying directly that gay couples have a right to marry.
Gay-rights lawyers also are hoping for another victory, one that would also help their cause in realms beyond marriage. It would require the Supreme Court to take a step it has so far resisted: saying that laws discriminating against gay people are subject to the heightened judicial skepticism that applies to ones drawing distinctions based on race or gender.
"The court has an opportunity," Sommer said, "to make explicit that laws and government actions targeting gay people do not deserve to be presumed constitutional and to require the government to justify their discrimination."
A Section on 04/28/2015