In a bold legal move that few litigants try, gay marriage advocates plan to urge the U.S. Supreme Court in three pending cases across the country to decide once and for all whether states can ban same-sex unions.
Gay and lesbian plaintiffs won before appeals courts in cases involving bans in Virginia, Utah and Oklahoma, and lawyers for those states have already asked the justices to take up their appeals. Lawyers defending the bans contend that the U.S. Constitution gives the states the role of defining marriage.
In what is a relatively unusual strategy, all three sets of challengers have said they want the justices to review the lower court rulings, even though those decisions favored their side by striking down individual state bans.
The parties that won in lower courts do not usually seek review. It is seen as a sign of the plaintiffs’ optimism that the justices would side with them that they are joining the appeals.
They will argue that all state marriage bans violate the Constitution’s guarantee of equal protection under the law. One set of plaintiffs in the Virginia case and the challengers in the Oklahoma case are expected to file court papers pressing that point as early as Wednesday.
Court papers in the Utah case are expected within the next few days. Another group of plaintiffs in the broad Virginia litigation filed papers last Friday making a similar argument.
The fact that both sides want the court to intervene may also increase the likelihood that it agrees to hear at least one case in its coming term, which begins in October and ends in June.
The new filings expected on Wednesday will highlight the involvement of prominent lawyers who are jockeying for position over who will earn the prestige of what they expect to be a major civil rights victory at the high court.
Theodore Olson and David Boies, who were on opposite sides in the Bush v. Gore case that decided the 2000 presidential election and who then joined forces against California’s earlier ban on gay marriage, are involved in the Virginia case.
The Utah couples recently signed up former acting U.S. Solicitor General Neal Katyal, and Stanford Law School Professor Jeffrey Fisher has joined the Oklahoma team. All have significant experience arguing cases before the Supreme Court.
The Utah plaintiffs are also joined by Mary Bonauto, who spearheaded the legal battle in Massachusetts that led to the first court ruling to strike down a gay marriage ban, in 2003.
In separate interviews, lawyers for the Utah and Virginia couples confirmed they would ask the court to hear their cases.
“We recognize the gravity of this issue to the court and the country,” Katyal said in an interview. “We want to the court to take the issue.”
In Virginia and Oklahoma, officials defending the state bans are represented by a conservative religious group, Alliance Defending Freedom. John Bursch, a former solicitor general in Michigan, has joined government lawyers in representing Utah