Mary L. Bonauto, The Daily Record Newswire
Like others, we at Gay & Lesbian Advocates & Defenders are riveted on the momentous cases pending at the U.S. Supreme Court: Hollingsworth v. Perry, the challenge to California’s Proposition 8; and United States v. Windsor, a challenge to the “federal definition” portion of the Defense of Marriage Act (1 U.S.C. §7). The groundbreaking work in the New England states is a huge part of why these issues are now ripe for consideration in our nation’s highest court.
Ten years ago, the Supreme Judicial Court broke an historic barrier and ruled that same-sex couples have an equal right to marry under the Massachusetts Constitution. The Nov. 18, 2003, ruling in Goodridge v. Department of Public Health, and the Legislature’s refusal to amend the constitution to take that right away, are milestones in the ongoing effort to bring gay people into the constitutional protections promised to all of us in our state and national constitutions.
Now, nine states and the District of Columbia license marriage for same-sex couples. In Kerrigan v. Dept. of Public Health (2008), the Connecticut Supreme Court rejected the argument that civil unions were adequate to fulfill the state constitution’s promise of equality, and the Legislature later codified that decision.
Lawmakers and voters in Vermont, New Hampshire and Maine brought the freedom to marry to committed gay couples through state legislatures and ballot boxes, including a veto override in Vermont in 2009, the state that first licensed civil unions. Rhode Island, we hope, will soon transition from a civil union system (currently existing in nine states) to marriage.
GLAD’s litigation, in partnership with so many others in these six states — plaintiffs, co-counsel law firms, bar organizations, concerned citizens, legislators and numerous other organizations — paved the way for the Supreme Court hearings in Hollingsworth and Windsor. We couldn’t have done it without unflagging pro bono work and expertise from major law firms. We in New England are extremely fortunate to have a strong, supportive legal community.
Boston’s Foley Hoag and Sullivan & Worcester, along with D.C.’s Jenner & Block, partnered with GLAD in Gill v. OPM, the first challenge to the federal DOMA on behalf of couples and surviving spouses who had actually been legally married couples.
Those same firms, along with Horton, Shields & Knox in Hartford, also joined in Pedersen v. OPM, a DOMA challenge in Connecticut on behalf of married residents of that state, Vermont and New Hampshire.
While the Supreme Court is “holding” the unanimous 1st Circuit victory for the plaintiffs in Gill, along with a certiorari before judgment petition following our Connecticut District Court win, everyone has stepped up to assist in the Windsor case.
Each of these firms authored crucial amici briefs in Windsor. Foley’s brief on behalf of former U.S. cabinet officials decimated the notion that DOMA promotes uniform administration of federal benefits. Sullivan & Worcester’s brief on the science of sexual orientation was also cross-filed in Hollingsworth (as were 13 other amici briefs). And Jenner focused on demonstrating how contextual factors make a difference in the rigor of rational basis review. (The Windsor amici briefs can be read at www.glad.org/doma.)
I can only describe as monumental and inspiring the outpouring of support from the New England legal community in the DOMA challenges. Major corporate law firms such as Bernstein Shur, Bingham McCutchen, Goodwin Procter, McCarter & English, Orr & Reno, Pierce Atwood, Ropes & Gray and WilmerHale have each devoted significant resources to submitting important briefs in DOMA challenges in the courts of appeal, the Supreme Court or both.
Attorney General Martha Coakley filed her own challenge to DOMA and also coordinated a multi-state amicus brief in the Supreme Court on both cases.
These firms presented important voices, perspectives and information to the court — of content experts and law professors; African-American, Latino, Asian, women’s, and state bar associations; and legal advocacy organizations.
We will never be able to thank adequately the many who have contributed to this work, but we know it matters. From GLAD’s teaming up with Langrock, Sperry & Wool to file Baker v. Vermont in 1997 to our work on Goodridge, to joining with Horton, Shields & Knox and Maureen Murphy in Connecticut in 2004 on Kerrigan, we know great things can happen when advocates work shoulder to shoulder with the private bar, both as co-counsel and as amici.
Even if DOMA falls, or marriage equality becomes the law of the land in June, there still will be plenty of work to do to ensure that victory makes a difference in people’s lives.
LGBT youth still face unique dangers at home and at school, and without these safe havens they are disproportionately likely to become homeless.
Transgender people still face discrimination in many vital areas of daily life, from employment to housing to health care.
As the last decade of the struggle for marriage equality illustrates, each part of the legal community has a role to play in achieving justice. We hope to continue working together.
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Mary L. Bonauto is Civil Rights Project director at Gay & Lesbian Advocates & Defenders.
