The legal case that gay-rights activists feared to see is about to get under way in a federal courtroom in San Francisco. For the next several weeks, plaintiffs will argue that the U.S. Constitution forbids states from restricting marriage to one man and one woman. The case has brought together some of the most powerful appellate attorneys in America but has divided gay-rights lawyers and legal scholars who fear that even if successful, the case could set the issue on a collision course with a less-than-sympathetic U.S. Supreme Court.
The high court has issued powerfully pro-gay-rights decisions at key points in the past 20 years including striking down criminal statutes forbidding gay sex six years ago. But it has never voiced a word of enthusiasm for gay marriage. That has left scholars and longtime legal veterans of the gay-rights movement fearing disaster for gay marriage, should the issue be decided by the conservative-leaning Justices. "When I try to count the votes in favor of same-sex marriage on the Supreme Court, I have trouble getting to one," Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, told TIME.
"The stakes are extremely high," adds law professor Samuel Marcosson of the University of Louisville, author of Original Sin: Clarence Thomas and the Failure of the Constitutional Conservatives. "I think the plaintiffs are (unfortunately) very likely to lose at least if the case makes it all the way to the Supreme Court and set a precedent that didn't need to be, and shouldn't have been, set. The case was premature and ill-advised."
The trial begins Jan. 11 in a 17th-floor courtroom in downtown San Francisco, and is expected to last two to three weeks. U.S. District Judge Vaughn Walker convenes a hearing Wednesday over whether to take the rare step of allowing the trial to be broadcast, despite strong objections by defenders of Prop 8 the 2008 voter initiative that ended gay marriage in California. Televised or not, the trial will be the first in federal court to answer the question of whether the U.S. Constitution forbids states like California from restricting marriage to opposite-sex couples.
If the plaintiffs prevail all the way to the Supreme Court, a decade of election-night wins by groups opposed to gay marriage will be reversed. Voters in more than 30 states have rejected gay marriage. That's what Californians did when they supported Prop 8 in late 2008, reversing a landmark state Supreme Court ruling that not only made gay marriage legal there, but gave gays and lesbians the same broad-based protection against discrimination that racial minorities enjoy.
The attorneys who brought the case, led by former U.S. Solicitor General Theodore Olson and famed litigator David Boies, are confident their timing is right. "We consulted and researched in depth," Olson wrote in an e-mail to TIME. "We concluded that we had/have a reasonable chance of success. Our clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event without the resources or experience that we can assemble. The State Attorney General has now conceded the unconstitutionality of Prop 8. Finally, no one urging us not to proceed could or would say when would be a good time to bring this case."
So what, exactly, will the two parties be trying to prove next week in order to win?
To begin with, Olson and Boies will argue that Prop 8 denies gays the fundamental right to marry, which the California Supreme Court held to be guaranteed. They will have to beat arguments from the other side that point out that no state prevents gays from marrying like everyone else, they just have to choose a partner of the opposite sex. And they will have to convince Walker that civil unions, which remain legal in California, are not an adequate substitute.