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Caution in Court for Gay Rights Groups
By ADAM LIPTAK
Fearful that aggressive action could backfire and
generate public hostility, gay rights groups are
planning to limit the scope of their legal challenges
to the constitutional amendments banning gay marriage
that were passed by 11 states last week.
The groups are making a temporary retreat from their
most fundamental goal, winning the right for same-sex
marriages, and focusing instead on those measures that
addressed civil unions in some way. The groups say that
broader suits seeking the right to marry could add fuel
to President Bush's efforts to create a federal
prohibition on gay marriage. Many of the state
amendments passed by overwhelming margins, and Karl
Rove, the architect of Mr. Bush's re-election, said
this week that there was a broad national consensus
that marriage is between a man and a woman.
So challenging the new state amendments by arguing
that gays have the right to marry under the federal
Constitution is unlikely anytime soon. Instead, gay
rights groups will move cautiously, mostly on
procedural matters in states whose measures appear to
infringe on civil unions and benefits for same-sex
couples.
Matthew Coles, the director of the American Civil
Liberties Union's lesbian and gay rights project, said
that groups like his would adopt a measured pace in
filing lawsuits.
"The consequences - the risks - of losing are great,"
Mr. Coles said. "And we're unprepared for the
consequences of winning." In his eyes, he said, winning
in court too soon could mean losing in the court of
public opinion, in Congress and under the United States Constitution.
The challenge now, gay rights leaders said, is to
change public attitudes.
"There is no putting lipstick on this pig," said Matt
Foreman, who is the executive director of the National
Gay and Lesbian Task Force and who will give the
keynote address on Friday morning at the group's
conference in St. Louis. "Our legal strategy is at
least 10 years ahead of our political and legislative strategy."
His adversaries also expect that court cases will
embolden their ranks. Mathew D. Staver, president and
general counsel of Liberty Counsel, a public interest
law firm that represents religious causes, said that
challenges in the federal courts were losing
propositions for gay rights groups - whatever their outcomes.
"If the same-sex marriage advocates win," Mr. Staver
said, "that will be like pouring gasoline onto the fire
for purposes of the federal marriage amendment."
Even without such litigation, he said, work would
continue for more gay marriage bans at the state and
federal levels. The 11 states that passed the
amendments join a handful of states that had previously
done so, including Louisiana and Nebraska, where
challenges are pending.
"You may see as many as 20 more state constitutional
amendments in the next two years," Mr. Staver said.
"And you'll see an accelerated effort to move forward
with a federal constitutional amendment because of the
marriage and morality mandate the president received in
the election."
In some ways, the new amendments are mostly symbolic,
gay rights advocates say. About 40 states already have
so-called defense of marriage statutes, including 10 of
the 11 that passed amendments last week. The amendments
make it more difficult to overturn those laws, but may
add little substance.
Gay rights groups also said they had not expected to
win in the 11 states, with the possible exception of Oregon.
"If you take out Ohio, Michigan and Oregon," Mr. Coles
said, "these are deeply conservative places where
everyone agrees it will be many years before there is
any recognition of same-sex relationships."
Gay rights advocates said they would pursue two kinds
of relatively oblique challenges to the amendments
because they present low risks. Some of the amendments,
they say, violated state laws on how questions are
presented to voters; others are simply unclear.
Eight of the 11 new state amendments address both gay
marriage and civil unions. But several of those states
require that ballot initiatives consider a single issue
at a time. Amendments that bar both gay marriage and
civil unions arguably run afoul of such requirements.
Furthermore, surveys of voters leaving the polls
suggest that many who disapprove of gay marriage are
not opposed to civil unions, and the combined question
did not allow that compromise.
A judge in Louisiana struck down an amendment passed
in September on that ground; the state's Supreme Court
will soon hear the case. Groups supporting gay marriage
say they have filed or will soon file similar
challenges in Arkansas, Georgia and Oklahoma.
But even the prospect of winning such procedural
challenges may give gay rights advocates difficult
tactical choices.
"It's a limited victory," said Andrew Koppelman, a law
professor at Northwestern University. "It's on the
ballot the next time. There are strategic questions: Do
you really want same-sex marriage on the ballot again
the next time?"
A second kind of relatively low-risk lawsuit would
seek clarification of ambiguous language. The language
in the Ohio amendment, for instance, said David Buckel,
the director of the marriage project at Lambda Legal, a
national gay rights group, "really makes you scratch
your head."
The amendment says the state "shall not create or
recognize a legal status for relationships of unmarried
individuals that intends to approximate the design,
qualities, significance or effect of marriage."
"We presume that this law will be interpreted to be as
harmful as it can be to gay families," Mr. Buckel said,
citing the possibility that the law could, for
instance, bar a member of a gay couple from visiting
his or her partner in the hospital. "We will be filing
suit to seek a narrowing construction of the law."
Questions concerning whether states and their
agencies, including state universities, may continue to
offer health insurance to gay partners are likely to
arise in Ohio, Michigan and Utah, legal analysts said.
Mr. Foreman said, "People are deluging us with calls
about whether they are going to lose domestic
partnership health benefits, about whether they can
complete the adoption of a child, about whether they
have to change their living wills."
The amendment that passed in Oregon will probably not
void the 3,000 marriage licenses issued to same-sex
couples in the state in March, legal analysts said. But
those licenses are in jeopardy for other reasons, and
the Oregon Supreme Court is considering the matter.
For now at least, gay rights groups say filing suit in
federal court arguing that the new amendments violate
the federal Constitution would be treacherous.
"This area of constitutional law, it's really not an
exaggeration to say, is in its infancy," Mr. Coles
said. "That leaves a lot of leeway for hostile or
timorous judges to rule against you. When the law
develops better and when attitudes begin to change, if
you pile up losses now, it's much harder to get courts
to take things back later."
Moreover, victories in the lower courts, he said, are
unlikely to be sustained on appeal.
Legal scholars say that the Supreme Court is not
prepared to recognize a constitutional right to gay marriage
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