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Culhane: The Wyoming gay marriage case debuts

 I was going to write a broad piece this week on whether marriage equality was the “wrong fight,” but Tuesday’s development in Wyoming has assumed priority. As reported on this site and elsewhere, a gay couple in that state has brought suit in federal district court challenging the state law that limits marriage to opposite-sex couples.

So it seems a bit abstract, at the moment, to be wondering about whether this is the right fight when it’s actually the battle being waged – again and again, in state after state. And the case has already given rise to a number of questions by 365gay readers, so I’ll try to answer them here.
The complaint in this case was filed pro se, meaning that the parties are representing themselves. Although information about the case (including the complaint itself) is hard to find, your intrepid columnist did finally track down this exclusive interview  with one of the plaintiffs, David Shupe-Roderick. Although other sources have suggested that the plaintiffs couldn’t afford an attorney, Shupe-Roderick states that he and his (all-but-legal) spouse Ryan W. Dupree did seek out private attorneys who were “unable to help” them. So they’re going it alone.
The complaint itself, whatever its defects from the standpoint of legal drafting, is simple and compelling: By denying the couple the right to marry, Wyoming has acted in contravention of the guarantees of equality and due process found in the U.S. Constitution.

Of course, if the judge follows the full-trial route that Judge Walker took in the Prop 8 case, Shupe-Roderick and Dupree will be at a substantial disadvantage. But the judge, Alan B. Johnson (a Reagan appointee) might simply decide the case on pure legal grounds. In that case, the playing field would be much more level, as the judge can read the cases and decide based on precedent and his own sense of what the constitution requires.

Or perhaps a local lawyer or advocacy group will now sign on to help these guys.
Like the Prop 8 case, this one stands solely on the federal constitution, not on Wyoming’s own state constitutional guarantee of equality. Because it’s in federal court, federal law needs to be invoked in order for the court to have jurisdiction.

Federal courts can sometimes hear state law claims – it’s too complicated to explain here, but there are procedural doctrines that let federal courts decide state law claims if related to the federal ones – but this complaint doesn’t raise them. (In contrast, claims brought in state court can allege state or federal constitutional violations, or both; most of the marriage challenges have rested their claims purely on state constitutions, thereby insulating the cases from Supreme Court review.)
These federal cases are quickly turning into a procedural thicket. There’s the DOMA challenge in Massachusetts, the Prop 8 litigation in California, and now this. Each of these is in a different federal “circuit,” of which there are currently12. Thus, until the Supreme Court weighs in, there’s the potential for a confusing battery of inconsistent decisions, affecting different laws and rights but all related to marriage. Such a situation is ultimately untenable, and the more these cases crop up, the greater will become the pressure on the Supreme Court to weigh in.

Meanwhile, we wait for our rights.
What should we make of Shupe-Roderick and Dupree’s decision to file this suit? This isn’t exactly the careful, textbook approach that advocacy groups have followed so far. Without first-rate representation, the odds of success of course go down. There are pitfalls everywhere, and a couple of non-lawyers could trip over any number of procedural obstacles (including standing to sue, depending on the facts).
But we shouldn’t disparage the efforts of these two men. Their frustration at the glacial pace of change, and outrage over the injustice of denying them basic equality, is shared by millions of LGBT people everywhere. It shows up in litigation, in local public health campaigns for information and basic services, in protests, and in so many other ways.
And this approach of filing suit without the blessing of advocacy groups, or even of heavyweights like Boies and Olson, isn’t new – the first wave of challenges to discriminatory marriage laws came back in the early 1970’s. While the best known of these, Baker v. Nelson, led to (weak) Supreme Court precedent against marriage equality – the appeal was dismissed for lack of a “substantial federal question”—all of these efforts can serve a valuable educational purpose, reminding those in the persuadable middle that there are actual people with a compelling need for simple justice.

John Culhane is Professor of Law and Director of the Health Law Institute at Widener University School of Law in Wilmington, Del. He blogs about the role of law in everyday life, and about a bunch of other things at: http://wordinedgewise.org.
  1. August 26th, 2010 at 07:54 | #1

    On the other hand….

    Read this breaking story by Melanie Nathan:

    Shupe-Roderick’s track record won’t help, even though it shouldn’t matter to the case.

  2. August 26th, 2010 at 10:17 | #2

    Wyoming:- Marriage Equality Probably Does Not Need A Jailhouse Lawyer (lezgetreal.com) Updated our Interview at Lezgetreal – http://lezgetreal.com/2010/08/wyoming-wyoming-marriage-equality-probably-does-not-need-a-jailhouse-lawyer/

  3. Tom in Long Beach
    August 26th, 2010 at 12:25 | #4

    I have always felt that it was so wrong that any two strait teenagers (18) can drive to Las Vegas and have more rights and recognition, than a Gay couple that has been together for decades. This is just unfair and needs to change.

  4. Tom in Long Beach
    August 26th, 2010 at 12:34 | #5

    I am not sure if Melanie should not have kept quiet about this couples past. I am sure our enemies will use this against us. It is like dangling meat in front of hungry pit bulls.

  5. matt87
    August 26th, 2010 at 13:39 | #6

    Glacial pace?

    The Devil wears Prada…

  6. August 26th, 2010 at 17:57 | #7

    thank you

  7. drpatrick
    August 26th, 2010 at 23:36 | #8

    So this isn’t the right couple. BUT, I question the thinking that this isn’t the right time. I think a barrage of suits across the country. Perhaps a small group of committed couples (not only committed to each other, but committed to the long challenge that this would involve) in each of the 44 states (excluding Canada and the equality states) filing suit, state court, federal court, whichever makes sense. Not just this piecemeal stuff GLAAD is doing (they are smart, taking on cases they are sure to win) but going for the big win! Clearly we will win a few, and lose many, but then there will undoubtedly be a federal question, and the SCOTUS will have to take the case. As I argued before, this may not be the court we deserve, but I challenge anyone to argue we’ll have a better court in the next 10-20 years. It will be different, for sure, but not likely better than what we have now.

    SO WHAT DO YOU SAY, Nat’l Orgs, how about it. Let’s start recruiting a diverse group in each state to challenge the status quo. Anyone in NM interested, my partner and I will gladly participate! This Wyoming couple have thrown down the gauntlet, it’s our choice to pick it up, and continue the fight for EQUALITY!!!

  8. drpatrick
    August 26th, 2010 at 23:43 | #9

    OK, I’m exhausted after a long day, that should have read, Excluding CALIFORNIA, and the equality states, not Canada. While Canada is a great land, valuing diversity and equality more than in the US, it is not a state, as that message implied. For those who caught the typo, good on you, for those who missed it, looks like you need some rest too. 🙂

  9. Marionette
    August 27th, 2010 at 13:02 | #10

    A lay person would not opinionate medical treatment for an ill person. A non-architect would not build a building in downtown Seattle. Non-attorneys should not file legal complaints.

    This knee-jerk, ill-informed move could have devastating effects on future same-sex marriage litigation, and the “professor of law” who wrote this article should know this.

    Leave it to the experts; as an attorney, I am afraid. Very afraid.

  10. August 27th, 2010 at 14:32 | #11

    Well, Marionette, doctors. lawyers and architects all require a license, but everyone is entitled to seek justice before the courts, no license required.

  11. drpatrick
    August 27th, 2010 at 19:00 | #12

    I must say, I don’t think this couple is the right couple (from what I’ve read about them) but I do think they are doing the right thing. If Rosa Parks had moved back, if MLK Jr didn’t march, if we as a people resign ourselves to what is given to us, instead of demanding what we deserve, where will we be? The road to equality is a long one, but if we don’t bother to keep moving forward, we’ll never get to the promised land!

  12. August 28th, 2010 at 16:58 | #13

    Without reading the complaint, I don’t see how we can criticize this couple. I would rather see challenges sent to the legal community that chose not to assist. However, worst case, this district denies the action and disagrees with the Ca circuit. This would give the US supremes a basis upon which to exercise jurisdiction. Now that several states have legalized gay marriage, I would like to see a case brought on the full faith and credit provision of the US Constitution.

  13. Dan
    August 29th, 2010 at 21:14 | #14

    What concerns me is that the Prop 8 case may never make it to the Appellate Court or the Supreme Court, because it’s doubtful that the proponents have standing to sue. But the Wyoming case may reach them fairly soon.

    This article in the Billings Gazette is also not reassuring. Apparently Shupe-Roderick is a convicted felon who has already filed five unsuccessful lawsuits: http://billingsgazette.com/news/state-and-regional/wyoming/article_a332e284-b329-11df-90b4-001cc4c002e0.html

  14. Dan
    August 29th, 2010 at 21:15 | #15

    Sorry, “standing to sue” should read “standing to appeal.” Long day.

  15. August 29th, 2010 at 21:26 | #16

    The only thing I’d like to add to the on-going discussion is this: Now that there are many, many thousands of LGBT people in relationships, it’s perhaps inevitable that these kinds of suits are going to be filed. Whatever their outcomes, in a larger sense they speak to the inevitability of equality — sooner or later. It just becomes harder and harder to deny people rights, when doing so obviously harms them and can’t be shown to hurt anyone else.

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