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Gay Marriage Advocates Urge U.S. Supreme Court to Strike Down State Bans

They want the justices to review the lower court rulings, even though those decisions favored their side by striking down individual state bans.


In a bold legal move, gay marriage advocates are urging the U.S. Supreme Court in three pending cases 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 filed court papers pressing that point on Wednesday.

"The question presented is enormously important and should be resolved – once and for all – as expeditiously as possible," lawyers for the Oklahoma plaintiffs said in their brief.

Court papers in the Utah case are expected within the next few days but lawyers for the couples have already said they will take a similar approach, as have a separate group of plaintiffs in the broad Virginia litigation.

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 on Wednesday 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.

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.

"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.