Freedom to Marry in the Supreme Court: How to Make the Timing Right

New York Times Room for Debate Blog
August 18, 2009

In response to the question, "Is this the right time to go to a conservative Supreme Court [with the freedom to marry]?" Evan Wolfson writes:
If the question is “Should the Supreme Court strike down the cruel and discriminatory exclusion of committed same-sex couples from marriage, an exclusion that serves no legitimate government interest?,” the answer is yes — and as soon as possible for couples who are doing the work of marriage in their day-to-day lives and who share an equal need for the protections and responsibilities marriage brings.

If the question is “Is now the right time to rush a case to the Supreme Court?,” I would draw on my own experience as the attorney who argued before the court in Boy Scouts of America v. Dale and participated in many other gay rights and other civil rights cases, including the case that ended race-discrimination in jury selection.

The first rule of Supreme Court litigation, I learned, is count to 5. If you don’t have a pretty strong sense that you are likely to be able to persuade and empower five justices to rule right, then why rush to a result that could be harmful?

The reality is, there are several freedom to marry cases already making their way through the courts, in addition to the case against Proposition 8 brought by Ted Olson, and his adversary in Bush v. Gore, David Boies. These include the challenge to the so-called “Defense of Marriage Act” brought by married couples represented by Gay & Lesbian Advocates & Defenders (GLAD), which won the Massachusetts and Connecticut freedom to marry cases. The Attorney General of Massachusetts also filed a suit on behalf of the state’s interest in not being forced to discriminate against its own married couples.

So in that sense, the question, “Is this the right time?” is no longer pertinent. The more important question is, “How can we assure that when a case reaches the Supreme Court, the court is ready to do right?”

The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

That means winning the freedom to marry in more states and winning over more hearts and minds. If the Supreme Court sees that the lived experience of gay couples marrying means families helped and no one hurt, that the rationales offered up to defend discrimination are false, and that the momentum in America is toward inclusion, then the timing may indeed prove right for the justices to do right. The opportunity to use the time between now and the day it’s turned over to the justices is very much in our control. Since that day may come soon, let’s start talking now to the people we need to persuade (see, and make the timing right.