The industry figures backing the federal suit to overturn California’s Proposition 8 welcomed the news that the Supreme Court would review the case, and the show biz activists for same-sex marriage expressed confidence in the outcome.
It was just over four years ago, in the aftermath of the passage of the state’s ban on gay nuptials, that Rob Reiner, his wife Michele and their two political consultants, Chad Griffin and Kristina Schake, hatched the idea to fight the initiative through the federal courts. Enlisting Ted Olson and David Boies, two legal eagles on opposite ends of the political spectrum, to lead the case provided a dose of publicity. David Geffen and Steve Bing provided the millions in seed money to get the effort launched.
Griffin, who is now president of the Human Rights Campaign, said that the court’s decision was “nothing short of a milestone” in the movement for marriage equality.
From the start, the goal had been to get the question of same-sex marriage before the high court.
“Things are going to plan — not necessarily going to schedule — but according to plan,” said screenwriter Dustin Lance Black, who has been part of the effort from the start as a member of the board of the American Foundation of Equal Rights. The org, led by executive director Adam Umhoefer, was set up in the spring of 2009 to pursue the case, and its members include a combination of entertainment, political and civil rights activists.
Producer Bruce Cohen, another member of the foundation’s board, said that “as much as I knew it was a possibility, hearing the word that it would go to the Supreme Court was unexpectedly emotional and exciting.”
“I don’t think anyone could have imagined when the case was filed [in May 2009] the enormous strides that the LGBT movement would take in such a short period of time,” Cohen said. “…There is so much forward movement that I feel like the Surpeme Court’s decision to hear this case could not have happened at a more fortuitous time.”
There had been some trepidation among LGBT leaders of taking a same-sex marriage case to the federal level, as LGBT leaders had been fighting for marriage equality largely in state courts and, more often than not, by fending off ballot initiatives. Fear of a setback in a conservative-dominated Supreme Court only added to the trepidation of seeing a case come before the justices too quickly.
But the passage of Proposition 8 created divisions on the best strategy to pursue. In winning an Oscar in 2009 for the screenplay for “Milk,” Black took time during his acceptance speech to argue that equal rights for gays and lesbians needed to be fought at the federal level.
“This whole thing is keeping a promise on a very big stage,” Black said. “Today we are one step closer.”
He said that he was “not surprised” by the decision to take the case. “I have to tell you that anyone who has been paying attention to marriage equality can see where we are headed. These justices do not live in a vacuum… They know that this is a can that you can’t continue to kick.”
The court also agreed on Friday to review a case challenging the constitutionality of a provision of the Defense of Marriage Act. Section 3 of the 1996 law defines marriage as between a man and a woman, preventing couples who wed in the nine states where marriage equality is legal from receiving a host of government benefits.
Nevertheless, the high court’s grant of certiorari in the Prop 8 case comes with caveats: The justices also will take up the question of whether the defenders of Proposition 8 have “standing,” a procedural decision that would allow them to avoid the weightier questions of Prop 8 on the merits. They also could decide the case on narrower grounds, as the Ninth Circuit Court of Appeals did this year when they sidestepped the question of whether the constitution guarantees a right to same-sex marriage and instead found fault with the idea that California voters took away a right from a class of people that once existed. After a California Supreme Court decision in 2008, same-sex marriage was legal for five months, with some 17,000 couples getting married, but the weddings were halted the day after the election.
Olson and Boies indicated that they would press the high court to issue a ruling that would have nationwide impact, not just limited to California.
“From the beginning we have argued that there is a fundamental right to marriage equality, that we ought to have marriage equality as a constitutional right everywhere,” Boies said in a conference call with reporters.
Even if the court were to rule that supporters of Proposition 8 have no standing to defend the law, it would still mean that same-sex marriages could resume in California, because of a sweeping district court verdict against the initiative in August, 2010. Olson and Boies said expressed confidence in having a strong evidentiary record to make their case, as the district court held a trial on the question proved so favorable to their case. One expert witness called by supporters of Proposition 8, David Blankenhorn, ended up bolstering the case for same-sex marriage and has since recanted his opposition.
Olson, declining to predict how any justice would vote, said, “We are taking no justice for granted.”
He said that while he doesn’t expect the court to be “influenced by public opinion,” he doesn’t think they will be “unmindful” of it either. In the Nov. 6 election, voters facing ballot questions in four states sided with same-sex marriage supporters, and public opinion has shifted dramatically in recent years.
“We think it is important for the court to understand that the American people have come to understand it is important to treat gay and lesbian citizens equally,” Olson said.
The court’s decision to take the case was a bit of a surprise because recent speculation was that the justices would instead limit their review to one or more of the DOMA cases before it. If they had decided not to take the Prop 8 case, that would have meant that same-sex marriages in the state could resume, perhaps as early as next week, and two of the plaintiffs, Sandy Stier and Kris Perry, were even making plans to wed in San Francisco.
“As much as Sandy and I want to me married, we wanted to be the plaintiffs in this case because we want everyone in California to be able to get married, and for that matter everyone in the country,” Perry said during the conference call.
What the decision will mean is another change to Black’s play, “8,” which is based on the district court trial. Readings have been staged in 400 cities, in theater venues and college campuses, since its debut in a star-filled Broadway theater last year.
Black said of Friday’s decision, “Every time something like this happens, I have to rewrite the ending.”