By Bill Mears, CNN Supreme Court Producer
WASHINGTON (CNN) — With equal amounts enthusiasm and charm, Jeff Zarrillo and Paul Katami call themselves “regular guys,” and “loudmouths” to boot. Their once low-key love affair has put the couple from Burbank, California, in the national spotlight as co-plaintiffs in a monumental fight now before the Supreme Court that tests the generations-old concept of marriage.
The same-sex couple wants to wed with the state’s blessing and, along with a lesbian couple from Berkeley, they have challenged a voter-approved measure known as Proposition 8, which defines marriage as a union of a man and a woman. No exceptions.
Rulings in that and a related appeal over federal recognition of same-sex marriage are expected Wednesday morning, the last public day of the high court’s term.
In the “Prop 8″ case, the high court is being asked to establish a constitutional “equal protection” right. It is the kind of hot-button issue that will define our society, our laws, our views on family.
“This is about our equality,” Katami told CNN’s Crime and Justice Correspondent Joe Johns. “This is about our freedom and our liberty. So we are not trying to topple marriage. We are not trying to redefine marriage. What we are trying to say is that equality is the backbone of our country.”
“The biggest harm is probably that we can’t get married and we love each other,” added Zarrillo. “And the harm of not being able to call him my husband.”
The political, social, and legal stakes of this long-simmering debate will once again put the high court at the center of national attention, a contentious encore to last summer’s ruling upholding the massive health care reform law championed by President Barack Obama.
Thirty-six states have specific laws blocking gays and lesbians from legally marrying. Ten states and the District of Columbia currently allow it, and two more will do so in coming weeks.
As more states legalize it, one of the key questions the justices may be forced to address is whether a national consensus now exists supporting the idea of expanding a “marriage equality” right to gays and lesbians.
There are about 120,000 legally married same-sex couples in the United States.
About seven states — including California, New Jersey, Illinois and Hawaii — have legalized domestic partnerships and civil unions for such couples, a step designed in most cases to provide the same rights as marriage does under state law.
But other states have passed laws or state constitutional amendments specifically banning such marriages. California’s Prop 8 is the only such referendum that revoked the right after lawmakers and the state courts previously allowed it.
Last year, a federal appeals court in San Francisco ruled the measure unconstitutional. In its split decision, the panel found that Proposition 8 “works a meaningful harm to gays and lesbians” by denying their right to civil marriage.
The law’s supporters say a state’s own citizens, not the courts, should decide such fundamental, time-honored questions.
“Marriage is the major cornerstone in Western civilization, and that’s how societies and cultures over time have defined it — between one man and one woman. So, to suggest a transformation from that vital definition that’s dramatically different is a very serious change that’s upon us,” said Austin Nimocks, co-counsel defending California’s marriage amendment. He works at the conservative Alliance Defending Freedom. “But ultimately it depends whether Americans can make this decision for themselves and not have it imposed upon them by judges.”
Dozens of civil rights and other gay rights groups are hoping the high court gives a sweeping endorsement of marriage equality for gay and lesbian couples. The oddball legal team of conservative Theodore Olson and liberal David Boies successfully made their case in the lower courts and urged the justices to now order states to stop marriage discrimination on the basis of sexual orientation, calling it the “defining civil rights issue of our time.”
“I think that we hurt people when we tell them they’re no good. We tell them that they’re not equal to us, and we say your loving relationship doesn’t count,” Olson told CNN in 2010 as he argued the case in the federal appeals court. “We’re putting a badge on them that says ‘unequal,’ and that’s contrary to everything we believe in this country.”
Plaintiff: Who wants to celebrate a domestic partnership?
Katami is a fitness instructor; Zarrillo manages cineplexes. Fourteen years ago, Zarrillo came out of the closet after moving to Southern California. The two met online and their relationship has slowly developed into a lifetime bond.
They have never married, or had either a state-recognized civil union or domestic partnership, something they call “second-class citizenship.”
“Marriage has distinctive definitions and rights that come with it. And a domestic partnership seems like a corporate document. In fact it acts almost exactly as one,” Katami said. “Do you really invite people and have cake at a domestic partnership signing? That’s not what represents who we are. We represent a married a couple and we need to be married.”
They jumped into the political debate five years ago when Zarrillo saw an anti-gay marriage video online, called the “Gathering Storm.” He encouraged his partner to see it.
“I was hounding him saying, ‘Hey, did you watch the video?’” Zarrillo said. “And sure enough, when I finally got him to watch it, he stood up off the couch and he said we have to do something — we can’t allow this to stand. Then we decided to shoot a response video.”
The YouTube video attracted hundreds of thousands of hits, and attracted the attention of gay rights groups planning a legal challenge.
Along with Kris Perry and Sandy Stier, parents of four boys from the Bay Area, the two couples agreed to put their names on an audacious lawsuit. They say gays and lesbians have a fundamental “equal protection” right to wed. They equate their cause to the civil rights struggles of a half-century ago.
But opponents say “Not so fast.”
“This is a process that California had undertaken to try to protect marriage in their constitution before we even had a definition posed by the California Supreme Court” affirming the right of gays and lesbians to wed, Nimocks said. “Obviously, they care about it. It was a very free and democratic debate, and the decision of the sovereign people should ultimately be allowed to stand.”
California has complicated history with gay marriage
The Supreme Court justices have discretion to rule narrowly or broadly on the twisting aspects of the legal and procedural questions raised.
Californians, it seems, cannot make up their minds about gay marriage, and the issue has been down a complicated legal road. For a one-month period in 2004, San Francisco unilaterally issued marriage licenses to same-sex couples, but that was halted by the state’s highest court while the legal issues were sorted out.
California’s Supreme Court then ruled in 2008 that same-sex marriages were legal. After the statewide ballot measure banning them passed with 52% of the vote later that year, gay and lesbian marriages were again put on hold. But a federal appeals court then found that measure unconstitutional.
“The U.S. Court of Appeals for the 9th Circuit, the intermediate appellate court, decided the case on a very narrow ground,” said Amy Howe, an appellate attorney and editor of the widely read SCOTUSblog.com.
“They said we’re not deciding whether there’s some broad right to same-sex marriage. What we’re deciding here is that, under the Supreme Court’s own case law, if you have a right to same-sex marriage, which existed in California, and then the voters take it away out of animus towards gays and lesbians, that violates the Constitution. So the court could decide the case on that ground. It could also decide the case on the ground that is urged by the United States in the California case.”
The Obama Justice Department took a separate position. Although the federal government is not a party in the Prop 8 case, it told the high court that if a state gives gays and lesbians all of the rights and responsibilities of a committed relationship, it should also give them that important label of marriage.
And there is an “out” if the court wants to avoid the issue entirely. Because the state’s governor and attorney general refused to defend Prop 8 in court — defying custom — that left an important “standing” question: Could private citizens supporting the measure step in and make the case? If the justices decide they cannot, Prop 8 would be history, at least for now. But no binding precedent would be set for other states to follow on the constitutionality of same-sex marriage.
It’s this generation’s job to secure rights, plaintiff says
Some in the LGBT community worry things may be moving too soon, too fast; the country and courts may not be ready to embrace a constitutional right, and the cause of equality could be set back. A decade ago, no states allowed same-sex marriage, and public opinion was squarely against the idea.
But the Prop 8 plaintiffs say the time is right.
“Early on, Paul one day came home and he was a little upset, asking, ‘Are we doing the right thing? People say we can set the movement back.’ And I was in the kitchen and I actually raised my voice,” Katami said, “and I actually don’t raise my voice very often at him: ‘I don’t know where this is coming from! Do you want to be treated like a second-class citizen for the rest of your life?’ Win or lose we can go to our graves saying that we tried, we did something.”
“A lot of people have come before us and there’s a responsibility that each generation has, especially within a minority community like the LGBT,” Zarrillo said. “I think that our generation’s responsibility is to win equality. And I think we are going to do that.”