Forcing the Spring: Inside the Fight for Marriage Equality Read Online Free Page B

federal income tax break straight married couples enjoyed when they filed jointly. Federal employees could not cover their same-sex husbands or wives under their insurance policies. In death, married same-sex couples also were penalized. Unlike their straight counterparts, surviving spouses had to pay estate taxes on the assets left to them, and had no right to their partners’ Social Security death benefits.
    But challenging DOMA would potentially pit the group against the Obama administration’s Justice Department, forcing a president who had said during the campaign that he believed marriage was between a man and a woman to choose a side. Besides, Olson said, he wanted to keep it simple.
    “Don’t bring DOMA into this,” Olson advised. “I don’t want to talk about taxation or health insurance. I want to talk about equal protection under the law.”
    The second, and better option, he said, was a lawsuit specifically targeting California’s ban on same-sex marriage. In Olson’s analysis, the passage of Proposition 8 was tragic, but it presented a unique and sympathetic set of facts for bringing an equal protection and due process case.
    In 2004, San Francisco mayor Gavin Newsom had unilaterally begun issuing marriage licenses to same-sex couples in violation of a state law that defined marriage as a union between a man and a woman. The California Supreme Court had voided those unions, but in 2008 it found that the law itself violated the state constitution. The ruling legalized same-sex marriage in the state for six months. Proposition 8 was a response to that court decision; itamended the state constitution in order to reinstate the same-sex couple marriage ban.
    Its passage created what Olson would later refer to as a “crazy quilt” of marriage regulations. California now had three classes of citizens: opposite-sex couples who could marry, and remarry if divorced or widowed; eighteen thousand gay and lesbian couples married in the months after the California Supreme Court ruling made it legal but before the passage of Proposition 8, who could not remarry if divorced or widowed; and unmarried same-sex couples who now wanted to wed but were prohibited from doing so by Proposition 8. Given that set of facts, even if the Supreme Court weren’t ready to find a nationwide right of same-sex couples to marry, Olson believed that at the very least it might still declare California’s ban unconstitutional, paving the way for future gains elsewhere with a helpful precedent.
    Another benefit of challenging Proposition 8 was that the defendants would be the governor, Arnold Schwarzenegger, and attorney general, Jerry Brown. Both had come out against the passage of Proposition 8 and thus would be unlikely to vigorously defend it. And the governor’s wife, California’s first lady, Maria Shriver, was a friend and client of Kristina’s who passionately believed in the gay rights cause.
    In addition, a Proposition 8 challenge would play out on friendly legal terrain. The case would first be heard in the U.S. district court in San Francisco, which meant that the appeals court that would review the verdict, since win or lose it was sure to be appealed, would be the Ninth Circuit Court of Appeals, considered the most liberal in the nation.
    Winning in the Ninth Circuit would represent a huge victory, potentially legalizing same-sex marriage not just in California, but also in Washington, Oregon, Idaho, Arizona, Hawaii, Nevada, Montana, and Alaska. Ultimately, though, Olson expected that a deeply divided Supreme Court would have the final say.
    There, Justice Anthony Kennedy would likely be the swing vote. He had authored the majority opinions in both the
Romer v. Evans
and
Lawrence v. Texas
cases.
    But Olson said it was important not to take any votes for granted. He knew all nine justices both professionally and socially. Justice Kennedy had attended his wedding. Justice Scalia, whose eldest son worked for Olson’s firm,