Attorneys Ted Olson, left, and David Boies, second from left, at a news conference after giving their closing arguments in a case challenging California's ban on same sex marriages in San Francisco, California.
When lawyers David Boies and Ted Olson filed suit last year in federal court to challenge California's ban on gay marriage, many gay rights experts faulted them for bringing the suit too soon. Olson told TIME then that such fretting was silly because whether he filed suit or not, the issue of gay marriage was so ripe that some other case would get the matter to the Supreme Court soon enough anyway, and, besides, he liked his odds of winning best.
Well he was right about at least one thing: No matter how his case fares in San Francisco — and a ruling is due any day — he's likely to have company as the decision is appealed up the line. On Thursday, as the legal world buzzed with rumors that a decision in the Prop 8 case was imminent — it wasn't — a federal judge in Boston stepped out in front and issued a pair of remarkable rulings that strike down a major part of the Defense of Marriage Act.
Congress passed DOMA in 1996, amid a flurry of public worry about the sanctity of marriage and the immorality of homosexuality, and just three years after the Hawaii Supreme Court became the first to rule in favor of gay marriage. It defined marriage — for federal purposes — as only between one man and one woman. If states wanted to let gays get married, the U.S. government couldn't stop them, but DOMA meant it was forbidden to recognize those marriages under federal law. The law also said no state could be forced to recognize as valid a gay marriage sanctioned in another state. California voters passed Prop 8 in November 2008, just months after its Supreme Court had struck down a state law preventing gay marriage. It changed the state constitution to make gay marriage illegal in California, something Olson's suit claims violates the U.S. Constitution.
At their heart, both the Boston cases and the Prop 8 case ask the same question, though in different ways and through a dense and differing thicket of constitutional weeds: Is there a legitimate government interest in denying same sex couples the right to marry, and to deprive them of all that has come to be associated with marriage?
The decisions are all but certain to be appealed by the Obama Administration, and will begin their trek through the appellate courts just about the time the Prop 8 case heads for its higher reviews. The Boston cases turn on different legal question than the one the Prop 8 case addresses, and therefore these East Coast and West Coast attacks on gay marriage laws may end up with different appellate histories. Most observers think the same-sex marriage issue will reach the high court, but if it does, the justices could take up the Prop 8 case and not the Boston rulings. Much will depend on how the circuit courts handle the cases.
But even though the California and Boston cases turn on different legal questions, the underlying arguments in both cases are similar enough that it's possible they could be part of the same review, should the Supreme Court decide it's time to begin settling, once and for all, the issue of gay marriage in America.
For his part, Olson told TIME that it's high time the high court gets involved, especially now that the legal attacks have challenged both state and federal laws. "The fact that this issue involves the constitutionality, under multiple provisions of the United States Constitution, not only of a California constitutional amendment — and other state constitutional provisions — but also a federal statute, makes for a compelling need for U.S. Supreme Court review of the denial of marriage equality to gays and lesbians," Olson said Friday.
The Boston cases hinged on whether Congress has the right to limit federal marriage benefits to gay couples already legally married under state law. By contrast, U.S. District Judge Vaughn Walker in California will rule on whether the U.S. Constitution forbids a decision by citizens of a state to change their own state constitution to forbid gay marriage.
The trial in San Francisco lasted weeks, largely because of the painstaking accumulation of evidence Olson and Boies hope will persuade Judge Walker, and ultimately the Supreme Court, that gays deserves to be put in the same Constitutional class as racial minorities and others afforded special protection against discrimination. In contrast, in the lead-up to the Boston decisions, there were no trials at all. U.S. District Judge Joseph L. Tauro said DOMA was so patently unconstitutional on its face, there was no need for a trial and granted summary judgement in favor of the plaintiffs in both cases.
"Plaintiffs contend that, due to the operation of Section 3 of the Defense of Marriage Act, they have been denied certain federal marriage-based benefits that are available to similarly situated heterosexual couples, in violation of the equal protection principles embodied in the Due Process Clause of the Fifth Amendment. ... This court agrees," he wrote in the first of the two cases, involving seven gay couples and four survivors whose spouses had died.
Like Olson, those plaintiffs had argued DOMA should be given strict scrutiny because of the special status of gays and lesbians as victims of historic and ongoing discrimination. But Tauro said there was no need to wade into that constitutional jungle. "This court need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test. As set forth in detail below, this court is convinced that there exists no fairly conceivable set of facts that could ground a rational relationship between DOMA and a legitimate government objective. DOMA, therefore, violates core constitutional principles of equal protection."
The ruling applies only to Massachusetts, but, if it stands, thousands of gay couples who have been married there will stand to benefit from more than 1,000 provisions in federal law that recognize marriage. If it is appealed and survives, the impact would grow, and if the Supreme Court agrees, gay couples in all five states (and the District of Columbia) that allow marriage — and the 18,000 or so married in California before Prop 8 — would get federal benefits. It does not address another section of DOMA that says no state can be forced to recognize gay marriages performed in other states.
Those are huge changes, should they survive appeal. But the real power of Tauro's decisions was in the way they remind one who reads them that for all the grand rhetoric usually associated with the controversy over gay marriage, the issue boils down to some very prosaic concerns: taxes, health insurance, and Social Security benefits, to name a few.
Both sides of the gay marriage debate talk often in sweeping terms. Some religious leaders have told me in interviews for TIME that gay marriage threatens undermining the very idea of family as a basic building block of human civilization. Olson, last month in his closing arguments in the Prop 8 case, decried the ban on gay marriage as a powerful "signal to other citizens and to other people that they are not okay, that these people are not normal."
Of course the stakes are high. And there is nothing ordinary about being allowed to be buried next to your spouse in a veterans' cemetery, as one of the Boston plaintiffs was seeking. But to read Thursday's opinions is to be given the clarifying reminder that what follows the right to gay marriage is the right to worry about the same mundane matters that most everyone else confronts: Can you get insurance from your spouse's employer? If your spouse dies, are you eligible for Social Security survivor benefits?