As I posted yesterday, I'm not at all optimistic about the federal suit filed to overturn Proposition 8 (and legalize same-sex marriage). Yes, I think these folks are right in that equal protection and due process should mean that everyone has a right to marry whomever they please. But, as all this noise this week about personal experiences affecting judicial decisions with regards to Sonia Sotomayor and Samuel Alito, I ought to point out that as a non-lawyer, a gay man, a first-gen American, and an out and proud Hoosier, my opinion is not representative of the Supreme Court's take on this case.
As Donald Rumsfeld famously said, "As you know, you go to war with the Army you have. They're not the Army you might want or wish to have at a later time." Indeed, if and when this case makes it to the Supreme Court (and if they win at trial, you bet your last diet coke the homophobes will make sure it goes to the Supreme Court), it'll go to the Justices we have, not those we might want or wish to have at a later time. And while the Court could change composition in this time, the conservative block - Alito, Roberts, Scalia, Thomas - is relatively young and is planning, I'm sure, to wait out the Obama presidency.
A group of nine LGBT organizations have come out against the lawsuit, saying that losing it (which these folks most likely will) will set a bad precedent that will take decades to overcome and could push state supreme courts against same-sex marriage in the future:
The suit is an about-face to longstanding strategy among LGBT legal groups that have advocated a state-by-state approach to create the momentum needed for a successful challenge at the federal level.
"We have only one shot at the U.S. Supreme Court, and any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a very heavy responsibility to be certain they have fully considered the consequences," said Shannon Minter, legal director for the National Center for Lesbian Rights who served as lead counsel for the Prop. 8 challenge.
On Wednesday a coalition of LGBT organizations, including Lambda Legal and the Human Rights Campaign, released a statement discouraging couples from filing federal suits -- in part because the court is currently unlikely to rule that a federal constitutional right exists for same-sex couples to marry, they claim.
"We think the risks of a negative decision that would harm gay people are greater then any potential upsides," said Jennifer Pizer, senior counsel and marriage project director for Lambda Legal.
I should note that Evan Wolfson's Freedom to Marry signed on to this statement. And if there was ever a group of queers more single-mindedly focused on same-sex marriage, as fast as possible and at any cost to the community, it's them. So when even Freedom to Marry can see that this case will get us nowhere, people ought to pay attention.
The Bilerico Project contributor and law professor Jillian Weiss explains the uphill battle this case will have:
I think the proposed lawsuit is extremely ill advised. While I believe that Prop 8 violates the equal protection clause of the United States Constitution, it is also equally clear that, under the current state of the law, Olsen & co. have an uphill battle argument. Federal law currently permits a state to distinguish between two classes of citizens in its law if it has a rational basis for doing so. If, and only if, the subject of the law touches on a fundamental right or burdens a suspect class of persons, then the state must show that it has a compelling state interest in doing so. In the Goodridge case, in Massachusetts, the court said that such a distinction lacked any rational basis. In the California case, the court said that it did have a rational basis, but that sexual orientation is a suspect class, and the state did not have a compelling interest in making the distinction.
The federal courts have generally refused to find sexual orientation a suspect class and there is little chance that the US Supreme Court would do so. Therefore, advocates are left with the argument that California's distinguishing between straight and gay couples lacks all rational basis. There are a couple of US Supreme Court cases that seem to suggest that this is sometimes true, but in very different contexts. There is Romer v. Evans, which said that Colorado couldn't have a law prohibiting cities from having a gay rights ordinance. They said such a distinction was simply born of animosity and is not a rational basis for legislation. The difficulty with applying this to the marriage cases is that marriage inequality advocates have smartened up and made a clear effort to base its arguments on pro-straight arguments, and not anti-gay arguments. So any new case would be quite different from Romer.
There is Lawrence v. Texas, which said that Texas couldn't have a law making gay sex unconstitutional. They implied that such a distinction was irrational, but then switched gears and said that the law violated the right to privacy of gay people. The Lawrence opinion specifically stated that its conclusion did not necessarily apply to marriage equality, though others have argued, nonetheless, that it could. The right to privacy is a very different concept from equal protection, and the right to privacy has never been an argument pursued by marriage equality attorneys.
I'm not saying that such a case could never succeed. Just that I'm not convinced that it has more than a fifty-fifty chance. Given that there has been progress on the state level, why create a chance that the Supreme Court would rule that bans on marriage equality doesn't violate the US constitution? When and if the composition of the Court changes, a later court could not easily undo the damage by overruling itself only a few years later and even Justices sympathetic to the cause would be reluctant to undermine Court authority by doing such a quick switcheroo on legal principles. While states advocates could argue that a bad US Supreme Court case should be ignored by the states on the grounds that their state constitutional equal protection clauses go beyond the federal equal protection clause, that would add an additional hurdle to an already fraught case.
In other words, these lawyers have their work cut out for them, since they would have to prove quite a few concepts that the federal court system and the Supreme Court specifically haven't shown a willingness to accept. And if they fail, they make it much harder for future state-level cases.
Olson and Boies response to such analysis? We know better, so shut the fuck up:
Speaking at a press conference in Los Angeles, Ted Olson and David Boies, who argued opposing sides in Bush v. Gore before the U.S. Supreme Court in 2000, defended the lawsuit brought on behalf of two California gay couples as a necessary step following Tuesday's Prop. 8 ruling.
"There are going to be many people who think this isn't time to go to federal court," said Olson, who was solicitor general under President George W. Bush. "But David and I have studied constitutional law longer than we'd rather admit, and I think we know what we're doing ... this case is about the equal rights guaranteed to every American under the U.S. Constitution."[...]
"Reasonable minds can differ when a constitutional challenge should be made," Boies said. "But when people are being denied constitutional rights today, I think it is impossible as a lawyer and an American to say, 'No, you have to wait.'"
Olson and Boies argue that relegating California same-sex couples to domestic partnerships instead of full marriage rights is a violation of equal protection and due process clauses under Fourteenth Amendment of the U.S. Constitution.
In its ruling on the constitutionality of Prop. 8, Boies said, the California supreme court "went far to point out that this decision was about the California constitution. It did not suggest that those who want to seek rights at the federal level [have no basis]."
Indeed, the California court stayed out of federal questions of equal protection in all their decisions on the issue of same-sex marriage in recent years. As far as I know, there hasn't ever been a federal case for same-sex marriage rights, just one that was started by GLAD a few months ago to overturn part of DOMA.
And because the California court stayed out of it, what Olson and Boies are effectively doing is running one of the lawsuits that started same-sex marriage in states like Massachusetts, Iowa, California, and Connecticut (but also lost same-sex marriage in Maryland, Washington and New York, won civil unions in New Jersey and Vermont, and created reciprocal beneficiaries in Hawaii) at a federal level. We've had a 50% success rate at the state-level, if we count civil unions as half of a success, and that was where we got to choose which courts we thought would be most amenable to our arguments and which state constitutions go the furthest when it comes to equal protection.
Would the ACLU, Lambda Legal, or NCLR have chosen to file such a suit in a hypothetical state with the same equal protection found in the US Constitution, the same case history that surrounds marriage and LGBT rights as the federal court system has, and the same nine people who sit on the US Supreme Court? I think we all know the answer to that question.
The lawsuit was filed by the American Foundation for Equal Rights, and they have no track record on anything since this is their first action. I hope they don't bungle it, but we have no guarantee that they won't. The Advocate reports all that we know about this group:
The suit is funded by the newly formed American Foundation for Equal Rights, a legal advocacy organization launched by political strategist Chad Griffin. A former communications staffer for the Clinton administration, Griffin has worked on political and social causes for Brad Pitt and Rob Reiner, among others in the entertainment industry. He declined to elaborate on the organization's board members or donors, saying that information will be provided in the coming days.
Wow. Nondemocratic activism decided on behind closed doors, funded by wealthy donors who pay no attention to the LGBT community at large and won't have to live with the real consequences of their action? Just what we need more of.
Olson and Boies, for all that everyone is saying about how committed they are to marriage rights now, are hired guns and stand to make a good profit on this case as it takes years to decide. Griffin, as an organizer, also stands to make a few bucks from his new Foundation. As for his donors, I guess we'll have to wait to find out what their angle is.