Two gay California men plan to ask a federal appeals court this week to declare they have a right to marry under the U.S. Constitution, but heavyweights in the fight for same-sex marriage are sitting this one out because they think the legal tactic is misguided.
"We have been very active in trying to win the freedom to marry for same-sex couples," said Jon Davidson, legal director for the Lambda Legal Defense and Education Fund. "We think there is a smart way to do that and a less smart way to do that."
Lambda, the American Civil Liberties Union and other groups are waging their campaigns in state courts in California, Iowa, Washington, New Jersey, New York and elsewhere, seeking similar rulings to the one that led to legal gay marriages in Massachusetts.
The groups are withholding funding and other support for this case, saying a U.S. Supreme Court ruling is a likely loser given the national consensus against gay marriage, and it would to set bad precedent.
The lawyer for a California couple whose case will be heard Tuesday by the 9th U.S. Circuit Court of Appeals scoffs at the groups' tactics.
"You fight for your rights when your rights are being denied," Richard Gilbert said. "When the building is on fire, you don't stand by and let the building burn down and say we'll fight the fire another day."
His clients, Arthur Smelt and Christopher Hammer, are arguing in federal court that the U.S. Constitution's equal rights guarantee forbids laws against same-sex marriage. The two men, both in their 40s, declined comment.
The lawsuit is one stop short of the Supreme Court — meaning the case could prompt a definitive ruling by the justices as early as next year on whether the 49 states that don't permit same-sex marriage are violating the Constitution.
Many same-sex marriage advocates believe gays and lesbians must win the right to marry in several states before bringing the case to the Supreme Court.
That approach is failing, Gilbert said.
Despite recent polls showing Americans are increasingly accepting of same-sex marriage, the movement has seen a backlash in the two years since Massachusetts started issuing marriage licenses and San Francisco Mayor Gavin Newsom's short-lived and illegal move to allow gays and lesbians to marry at City Hall.
In 2004, 13 states approved constitutional bans on same-sex marriage. Texas and Kansas followed the next year. All told, 19 states have amended their constitution to outlaw gay marriage, and voters in six or more states could be asked to amend theirs similarly this year.
Even Gilbert suspects his case might lose at the Supreme Court or be dismissed on procedural grounds without a definitive ruling.
"Once there is a great stain like that on the courts, there will be a greater movement toward correcting the problem," he said.
Matthew Coles, director of the ACLU's Lesbian and Gay Rights Project, said there is no "magic number" of states that need to approve same-sex marriage before the issue should go before the Supreme Court.
"We think, strategically, bringing a federal claim for marriage now is not a wise idea," Coles said. "The Supreme Court is the country's institutional conscience, and if you lose there, I think that sets you back."
Gilbert, however, likened his case to the 1857 Dred Scott decision, when the Supreme Court ruled that black men could be "treated as an ordinary article of merchandise."
The nation eventually overcame that decision with the Civil War and banned slavery. The ACLU and Lambda, Gilbert said, "would have told Dred Scott, 'Don't bring your case."'
Lambda's Davidson said history is siding with his position.
In 1986, when many states had laws banning sodomy, the Supreme Court upheld a Georgia sodomy law. Then, in 2003, in what was then seen as the most important legal advance for gays, the justices struck down a Texas sodomy law in a decision that nullified the nation's remaining 13 state sodomy laws.
"What we've learned was: You're more likely to win at the Supreme Court if you've done your homework, if you have victories in state courts," Davidson said. "He (Gilbert) thinks he knows better and that we have somehow sold out, and I find that quite offensive."