May 15, 2008 4:05 PM

Pro Bono Win for Heller Ehrman: California Supreme Court Overturns Gay Marriage Ban

Posted by Nate Raymond

Tomorrow, predicts Stephen Bomse, "a lot of people will be getting over a fairly massive hangover." The Heller Ehrman antitrust partner is referring to the immediate outcome of the California Supreme Court's decision today to strike down the state's ban on same-sex marriage. The law firm signed up in 2004 to provide pro bono advice to a coalition of gay rights and civil liberties groups looking to strike down the law. (Bomse stresses he wasn't the only lawyer involved. Shannon Minter of the National Center for Lesbian Rights argued for gay couples before the supreme court, while assistant attorney general Christopher Krueger defended the law for the state.) We caught up with Bomse to find out about the firm's work on the litigation and what the court's ruling means.

How did Heller Ehrman get involved in this case?
We got involved through the National Center for Lesbian Rights. One of our partners was on the board, and I have done a number of gay rights cases over the years, usually through the ACLU. [My partner] suggested to the legal director of NCLR that I would possibly be a good person to help out on these cases.

How does an antitrust lawyer get involved in gay rights cases?
Because I'm not only an antitrust lawyer but also someone who's had a longtime interest in civil liberties issues of all kinds that range from religious freedom to racial equality, from defamation to gay rights.

The firm handled this case pro bono. How many hours did the firm donate to this?
Oh, several hundred.

And attorneys?
It varied over time, and some of the associates left and other people had to go on to do other things, but at any given time we had three or four. But it was a different three or four every year. I am probably the only person who was on it from the start.

What do you see as the fallout of the court's ruling?
Obviously the court's opinion is definitive and when it becomes effective in 30 days I believe that throughout the state same-sex couples will be applying for and receiving marriage licenses.

Will the state be ready for that, administratively?
I have every reason to believe that the state is going to do what's necessary, and the counties are going to do what's necessary to meet what I'm sure will be a large number of couples asking for marriage licenses as soon as the decision becomes effective. This will probably include a large number of the 4,000 couples who got married prior to the supreme court's earlier ruling that that was not permissible pending the outcome of this case. So a lot of remarriages of the same couples.

Right, because there was a previous ruling in 2004.
A previous ruling that said until we decide the constitutional issue it was not appropriate for San Francisco's registrar to issue licenses to same-sex couples. And the court specifically at that time invited a case challenging the constitutionally the ban on marriages by same-sex couples, and that's what was decided today.

My understanding is that the California Supreme Court is tilted toward Republicans and conservatives. Given that, is it surprising that this was overturned?
No. I think the California Supreme Court is a group of very thoughtful, very sensible, and very courageous justices. Ron George in particular, the chief justice, should be singled out for not only coming out in a way that is legally, indisputably correct but having the courage to do that. His opinion will be regarded as a landmark decision not only for the outcome but also the quality of the opinion. It is truly stunning in its clarity and its persuasiveness.

TALK BACK: Chief Justice Ronald George wrote that the state's constitution “properly must be interpreted to guarantee this basic civil right to all Californians, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples.” However, three of the seven justices dissented. Is George right? Post your comments here.

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