Courting Disaster

On a sweltering late-spring afternoon, David Coffman, a
local
tax attorney, calls me to announce that he will be at The
Stranger‘s front desk in less than 10 minutes. We had no plans to
meet until that moment. In the lobby, Coffman, perspiring and beaming
and wearing a gray suit, greets me with one hand and presents a framed
certificate with the other. This certificate, the calligraphy reads,
certifies him to argue cases before the United States Supreme
Court.

Despite the impressive certification, Coffman has never actually
argued before the nation’s highest panel of judges. “I am a tax lawyer,
not a constitutional litigator,” he says. Nevertheless, he has a
controversial plan,
fueled by an almost messianic sense of

urgent duty, to stand before the conservative-
dominated court
to argue for equal protection for gay couples who wish to marry.

On June 3, a week after he announced this plan, Coffman, 42, and his
boyfriend, Matthew Mayne, 30, walked into the King County Courthouse
and applied for a marriage license. The clerk, of course, promptly
rejected the application under a 1998 state law that restricts marriage
to one man and one woman (a law upheld in 2006, over the objections of
gay-rights lawyers, by our state’s supreme court).

His desired rejection letter in hand, Coffman began drafting a
federal lawsuit that he intends to file within a few weeks in the U.S.
District Court for the Western District
of Washington, challenging
his inability to get a marriage license. Win or lose, Coffman expects
the case to be appealed to the Ninth Circuit Court of Appeals and
eventually to the U.S. Supreme Court.

But Coffman’s plan is exactly the kind of thing that LGBT legal
groups have been working for years to prevent—and for good
reason. Coffman’s crusade could sacrifice a generation of gay-rights
progress if the Supreme Court finds that separate (civil unions) is
equal (to marriage). It’s happened before. In 1896, the court found in
the landmark case Plessy v. Ferguson that separate railcars for
African Americans constituted equal treatment under the law, a decision
that the court didn’t reverse for almost 60 years. Fearing just this
kind of scenario, groups such as Lambda Legal and the American Civil
Liberties Union have instead litigated for gay marriage in a carefully
orchestrated state-by-state strategy, identifying states with
progressive courts and winning marriage rights in places such as
Massachusetts (2005), California (2008), and Iowa (2009). Last year,
and again in May, a coalition of national nonprofits issued a notice
warning attorneys and gay couples that “pushing the federal
government… or suing in states where the courts aren’t ready is
likely to lead to bad rulings.”

But those requests didn’t stop two other attorneys from filing a
case in California, days before Coffman showed up to meet with me, in
response to that state’s supreme court upholding Proposition 8 (the
ballot measure that restored a ban on same-sex marriage in California).
The attorneys behind that suit are arguably the two best litigators in
the nation, Ted Olson and David Boies, who represented George W. Bush
and Al Gore, respectively, in the presidential-election recount case of
2000. Coffman says he doesn’t trust Olson and Boies to argue the
marriage case because they are straight and because Olson has
represented extremely conservative causes in the past. Coffman also
believes that by filing his case federally, it will become joined in
with Olson and Boies’s case, and they will ultimately be forced to work
with him.

“My goal in this suit is that there will be a gay lawyer and someone
who knows what has been going on for the last 20 years in the LGBT
legal community,” says Coffman.

Indeed, Coffman is not some random gay tax attorney. He sits on the
board of Equal Rights Washington, he serves as the attorney for
Seattle’s gay pride parade, and he’s teamed up in the past with Lambda
Legal and Legal Voice (formerly Northwest Women’s Law Center). Until
now, Coffman has mostly walked in step with their ranks.

Jenny Pizer, director of the marriage project for Lambda Legal, is
alarmed by Coffman’s plans. So is Lisa Stone, executive director of
Legal Voice. “I think these issues should be left to people in
organizations that are deeply familiar with this area of the law,” she
said. “I tried to persuade him not to file the federal marriage
suit.”

Coffman acknowledges his case could fail, but he says he’s done
taking direction from national gay-rights groups that tell him to stay
out of the way. There’s no small amount of hubris involved in his
gamble, but when challenged he offers a sort of Trojan-horse backup
plan: If his case is, in fact, joined with that of Boies and Olson,
Coffman says he might try to slow the case down, allowing time for
President Barack Obama to appoint a more-progressive Supreme Court,
thus increasing the chances of a favorable ruling on same-sex marriage.
“One thing I am good at is throwing wrenches in the works,” he says.