WASHINGTON (Reuters) - Less than a month before the U.S. Supreme Court hears their historic case, lawyers for gay couples from four states with bans on same-sex marriage are close to finally resolving which of them will argue before the justices.
Intense negotiations peaked in Ann Arbor, Michigan, on Sunday when contenders involved met for the legal equivalent of a bakeoff, and sources close to the talks said an announcement was likely to come on Tuesday.
Front-runners for the two spots appeared to be Mary Bonauto, a prominent gay advocate who has worked for the cause for decades, and Douglas Hallward-Driemeier, a former assistant U.S. solicitor general who is now an appellate specialist in private practice.
At issue before the nine justices on April 28 will be two questions: whether the U.S. Constitution protects a right to same-sex marriage, and if it does not, whether states that ban it must recognize marriages performed in states permitting such unions.
The cases concern bans in Ohio, Michigan, Kentucky and Tennessee. At present 37 of the 50 states and the District of Columbia permit gay marriage.
It has been difficult to fully assess the tenor of negotiations, since key leaders have declined to talk about the selection process of the two lawyers, one to argue each legal question. Skirmishes often occur in consolidated cases, when multiple parties are on a side but only one lawyer gets a spot at the lectern.
Lawyers said Sunday’s mock competition in a university moot courtroom was likely only one factor in deciding who would argue the first issue of whether the U.S. Constitution guarantees a right to same-sex marriage. The choice of Hallward-Driemeier to argue the second question apparently had been resolved before the weekend, the sources said.
The justices rely mainly on written briefs from the two sides, but they say oral arguments in a close case can tip the balance. The lawyer who stands in the well of the courtroom, especially for a momentous civil rights case, draws inordinate attention from the legal profession, news media and public.
Lawyers for the four states defending the bans named their two advocates by the court’s informal March 17 deadline. The gay and lesbian challengers - represented by a battery of local counsel, national gay rights advocates, and appellate specialists - asked that day for four slots, essentially for the four state teams. The court never officially responded, putting more pressure on the challengers to settle on the customary two lawyers for the two legal questions.
Exacerbating tensions has been the deepening pattern of clients turning to specialists, national champions of sorts, to argue before the high court, rather than sticking with the lawyers who handled the case in lower courts.
A recent Reuters report documented the trend toward elite specialists and those lawyers’ remarkable success rate before the justices. [IC:nL2N0TP25L]
Unlike the gay-marriage dispute that began in California and ended at the Supreme Court in 2013 with the same lawyers -prominent national attorneys Theodore Olson and David Boies - these cases from the Midwest originated mainly with local lawyers.
Bonauto of the Boston-based Gay & Lesbian Advocates & Defenders has never argued before the justices but is an architect of national gay-marriage litigation and joined the Michigan legal team as its case progressed.
Hallward-Driemeier, a partner in the Washington office of Ropes & Gray, only recently became involved in the gay-marriage fight, but he has argued 14 cases at the high court, according to his biography on the firm website. Neither he nor Bonauto returned telephone calls.
Their legal team leaders have been trying to keep the process confidential, to ensure a united front and avoid hurting those who will not be at the lectern.
Arguing for the four states will be John Bursch, a former Michigan solicitor general, and Joseph Whalen, a Tennessee associate solicitor general.
The court has scheduled a total of 2-1/2 hours for oral arguments. A decision is due by the end of June.
Reporting by Joan Biskupic; Editing by Howard Goller