Dr. Jillian T. Weiss

LGBT Bar Panel Weighs In On Marriage Equality

Filed By Dr. Jillian T. Weiss | August 29, 2010 2:30 PM | comments

Filed in: Marriage Equality, Politics, The Movement
Tags: marriage equality, marriage rights, same-sex marriage

The LGBT Bar Association's Lavender Law Conference ended yesterday, and it was wonderful hearing all of the interesting panels and meeting old friends in the legal world.

I particularly enjoyed yesterday morning's plenary, about developments in the struggle for marriage equality.

Some of the major marriage litigation players were at the podium. Therese Stewart, Chief Deputy City Attorney for the city of San Francisco, who headed the city's legal team in the case that granted marriage equality, William Eskridge, Yale law professor who has written highly influential law treatises and Supreme Court briefs on the subject, Jenny Pizer, Marriage Project Director for Lambda Legal, and co-counsel in the California state case that granted marriage equality, Shannon Minter, legal director of the National Center for Lesbian Rights, lead counsel for the couples in the California state case, and Tobias Barrington Wolff, law professor at the University of Pennsylvania, who has written extensively on this area, as well as serving as counsel in many marriage cases.

They laid out the general background and several of the important issues that have heretofore been very obscure, like interstate recognition of marriages, and standing. One of the most interesting points made was the importance of transgender marriage issues to this area of law, and by extension, to marriage equality generally. Professor Eskridge answered my question about how Justices Sotomayor and Kagan will come down on Perry. More on what they said after the jump.

The point made about trans marriage by Shannon Minter, Prof. Wolff and Prof. Eskridge was that the current rules become very hard to interpret when the issue of one (or both) partner's gender comes into play. The rules for determining gender are so variable from state to state, and agency to agency, that the arbitrariness of the marriage rules become much more apparent. This of course raises the concern of many trans people that this colonizes trans experience and utilizes it for the purpose of LGB liberation, while leaving trans people to their shadowy netherworld of discrimination. On the other hand, the interpretation that I favor is that it demonstrates the interconnectedness of the LGB and T community, and rebuts the separatist arguments on both sides of the quadratic equation. Besides, trans advocates don't exactly have clean hands when it comes to the charge of colonizing the experience of intersex people for trans liberation.

There was also an interesting dispute between Professors Wolff and Eskridge regarding the standing issue in Perry. In brief, that issue comes up because the real party in interest -- the State off California -- has decided not to appeal Judge Walker's verdict. Ordinarily, that would end the litigation, and it could not go to a higher court on the merits of the decision. Can a person that is not a party to the lawsuit go ahead with the appeal? Professor Wolff thought that the Ninth Circuit (and, I assume, the Supreme Court) would find that these outsiders to the lawsuit do not have standing to appeal Judge Walker's verdict. Prof. Eskridge, on the other hand, thought that the courts would find a way to create standing. They didn't give a detailed explanation of their opinions, as it was raised as a bit of a side issue.

I'm no expert on standing, and not competent to weigh in on this issue from a legal point of view. However, from a common sense point of view, I tend to agree with Prof. Eskridge. My thinking is that a court would not want to see litigation of this magnitude decided without an appeal, when it affects many local governmental units in the state, and some of them feel the decision is incorrect. Court decisions are often result-oriented, meaning that the judges decide what they believe the correct decision to be, based generally on their experience as well as their knowledge of the law. Then they try to find a legal path to backing up that decision based on precedents that may or may not be directly applicable. If I had to guess, I would guess that the Ninth Circuit wants to weigh in. But we shall see.

Therese Stewart made an interesting side comment as well. She noted that in another ballot initiative in California, the initiative specifically created an independent commission whose task it is to defend the initiative if it be challenged in the courts. I believe she might have said that the commission would have had to appeal. By contrast, no such commission was created by Prop 8, and so the Governor has a clear right not to appeal further.

Prof. Wolff also differed with David Boies' assertion that marriage equality would be in no worse position if the Perry plaintiffs lose in the Supreme Court. Boies suggested that the situation now is that there is no marriage equality, and a Supreme Court decision would simply affirm that this is status quo and that it would simply be a declaration by the Supreme Court that Perry is not an appropriate case to change that. A later decision by the Supreme Court could overturn that at the appropriate time, or in a more appropriate case. The Court could also provide guidance to litigators as to what an appropriate case might be. Professor Wolff said that he felt that Mr. Boies underestimated the chilling effect of a Supreme Court decision, enshrining a precedent against marriage equality that the Court could be reluctant to overturn in a short period of time. Prof. Eskridge concurred with this point.

Indeed, the Court is generally reluctant to overturn its own precedents, lest that undermine the institutional authority of the judiciary. For example, in Lawrence v. Texas, which found the sodomy laws unconstitutional, the Court in 2003 overturned its precedent in Bowers v. Hardwick from 1986, a mere 17 years later. That's a short time in the law. That was looked at askance by many legal commentators as showing that the law is nothing more than judicial political preferences, depending on who is in the judge's seat. (But then again, who doesn't know that at this point in history?)

The point was also made that the decision in Perry is likely to be made on fairly narrow grounds. It would like not proclaim marriage equality throughout the land, but be more narrowly tailored to the specific circumstances of the situation in California. I made the same point in my post on Perry (in my discussion of Justice Kennedy). As I said there, I wanted to hear from experts on the issue because this is outside my area. It sounds like at least some experts feel the same way.

During one answer, Prof. Eskridge said that Justice Sotomayor "gets it." I wanted to hear more on this, so I asked why he said that, and how he feels Justices Sotomayor and Kagan will rule on Perry. As I explained in my post on this issue, I think it comes down to them as to which way the Court will go.

Prof. Eskridge noted that he has known Justice Sotomayor for thirty years, and related some anecdotes about her and Justice Kagan to illustrate their gay friendliness, talking about Justice Sotomayor's sympathetic assistance to a gay friend and propensity to hire gay law clerks. He said that Justice Sotomayor is likely to be attracted to the standing issue, and that she takes the issue seriously. She also regards the issue of the Court's legitimacy seriously, and will probably not be interested in issuing a broad opinion that imposes the issue on North Carolina and Alabama. At the same time, she will pay attention carefully to the issues and he felt that she would get it right. He didn't say that much about Justice Kagan, but did indicate his belief that she would get it right as well.

Prof. Eskridge also handed out a very interesting sheet discussing, among other things, "theories about the road to marriage equality." He divided these into three:

  • Brown v. Board Triumphalist Theories (e.g., Ted Olson in Perry). Courts will do the right thing.
  • Roe v. Wade Backlash Theories (e.g., Gerald Rosenberg). Court victories create backlash.
  • Loving v. Virginia Equality Practice Theories (e.g. Mary Bonauto in Gill). Step by step.

He agreed with the third one, and made a very dry joke about the fact that the Supreme Court had several opportunities over thirty years to reverse the Virginia miscegenation statute, but declined to do so until the Loving case in the Sixties. "So, yeah, the court will do the right thing." The audience roared, as did I, made all the more funny by the fact that Prof. Eskridge's very serious demeanor hides a wicked sense of humor.

He also said that there are three institutional lessons about court rulings:

1. Public opinion matters (a lot)

2. Inevitability and productivity of interactive politics

3. Role of courts = reverse the burden of inertia

As I understood his points, he was saying that public opinion is important in the sense that courts don't want to get too far ahead of public opinion. It's not that judges look at public opinion polls, but they have a general sense of it, and they want to use lawlike decision-making and also write decisions that they (and the government and the public) can live with. On the second point, I think he meant that the exchange of views in different types of political venues, like various courts and legislatures and media, create a more productive politics that moves the ball forward. On the third point, he said that when courts make decisions on specific issues, like marriage equality, even if the decisions are later changed or reversed, that puts the issue on the public agenda, again moving the ball forward.

All in all, a very interesting discussion. What do you think about marriage equality in the courts and where this is all heading?


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I'm thinking a lot of things as I'm reading this, so here are a few comments rolled up into one:

1. AFER didn't send anyone? They are arguing the most watched LGBT case most likely ever, and they can't be bothered to go to an LGBT law conference? What a surprise.

2. If the Appeals Court finds standing, are we allowed to scream "Judicial activism!!!!!"?

3. About whether a negative decision would be good or not for the overall battle, I think that the public opinion is worth considering, in that this court case is raising a lot of awareness and getting a lot of free publicity. That's worth something.

4. Great post! Interesting discussion indeed!

It was great talking with at the conference.

I think the other half of the point Wolfe and the panel were making about the chilling effect of a bad decision at the Supreme Court in Perry is that the current trend (Romer, then Lawrence, even CLS v. Martinez) has been toward more expansive protections of LGBT people as a matter of Constitutional right. Even so, convincing lower court judges to expand upon the protections established in those cases has been difficult and an ongoing battle. With Perry, the court could very clearly limit the scope of Constitutional protection afforded to LGBT people, or at least slow and possibly reverse the still-developing trend of expansion.

Renee Thomas | August 29, 2010 8:37 PM

With the admittedly self-conscious understanding that my naïveté is showing and the equally clear understanding that we're not as yet arguing this before The Supremes it seems odd that we here dispute if not give credence to the notion that:

"Doing the right thing" as an expression of the clear demands of equal protection under the law apparently holds sway in The Gray Havens (and presumably from there on to Valinor) but . . . among the Kingdoms of Middle Earth, perhaps not so much. There it seems "public opinion matters (a lot)."

How can a cogent, much less logical and constitutionally defensible, argument be made (or worse deferred) on the basis of not wanting to get out too far in front of public opinion? How far removed is that from the notion of the rabble "voting" on the civil rights of the minority by imposing its "opinion" upon a Judiciary timidly disinclined to clearly call animus when they see it? Correct me if I'm wrong but is that not what has brought us to this point in history?

Leslie Farber | August 30, 2010 7:28 AM

I was at the conference and this particular panel discussion (plenary) as well. Thank you Dr. Weiss for providing a very accurate summary and recitation of many of the points the panelists raised.
On kind of a side note, someone raised the question of what would happen if the 9th Circuit Court of Appeals not only were to say the appellents (Propo 8 supporters) have no standing to appeal, but had no standing to participate in the trial either. Even though all agreed this is unlikelty, one panelist gave an unchallenged answer that the whole case would be dismissed like it never happened. This is clearly a wrong answer. First year law school civil procedure 101 teaches us that the case would not be dismissed, but that plaintiff (Prop 8 challengers) would win by default (subject to the Prop 8 challengers presenting proofs that they are entitled to win, but there would be no defense).

> The point made about trans marriage by Shannon Minter, Prof.
> Wolff and Prof. Eskridge was that the current rules become very
> hard to interpret when the issue of one (or both) partner's
> gender comes into play. The rules for determining gender are so
> variable from state to state, and agency to agency, that the
> arbitrariness of the marriage rules become much more apparent.

And the more so when gender (which no one can agree how to define) is used instead of sex. But then that's deliberate.

> This of course raises the concern of many trans people that this
> colonizes trans experience and utilizes it for the purpose of
> LGB liberation, while leaving trans people to their shadowy
> netherworld of discrimination. On the other hand, the
> interpretation that I favor is that it demonstrates the
> interconnectedness of the LGB and T community, and rebuts the
> separatist arguments on both sides of the quadratic equation.

You've noticed colonialism then? But only that by LGB, not by people wielding the transgender umbrella against intersex people, butch lesbians, and indeed any woman not complying totally with stereotypes. Not to mention those of us with a history of transsexuality who solely identify as women.

There's nothing quite like the imperialist arrogance of leveling accusations of transphobia against those of us driven by the transsexuality to need that clear identity. But accusations of homophobia come close.

Sorry, "leaving trans people in their shadowy netherworld" (your description) "rebuts the separatist arguments"? I would disagree with "shadowy" and "netherworld" but it is pretty much indisputable that most of the discrimination suffered by trans people just doesn't show on the L&G radar except when it is grist to their mill. And, indeed, a great many L&G actively oppose some of our most vital efforts.

Just how many L&G attended any of the trans sessions at that conference? And even at the trans sessions I see nothing about removing the dire discrimination against transsexual children, who are too often claimed as gay and "confused".

There is no single LGBT community. That is a dangerous delusion which leads to many vital concerns being trampled upon. There are many communities, and many people who are not part of communities who still have rights, and should have access to them.

> Besides, trans advocates don't exactly have clean hands when it
> comes to the charge of colonizing the experience of intersex
> people for trans liberation.

Strange you should say that when the conference's transgender resources included several papers about intersex, which seems to show those there were doing exactly that.

Even papers by Dreger, quoting Zucker, which is like the ultimate combination, being the woman who imposed "Disorders of Sexual Development" on intersex people and tried to character-assassinate Professor Lynn Conway, and the man who is the main proponent of reparative therapy and withholding belief from transsexual children, and the key person in retaining our being listed as mentally disordered. Did you you raise that with them?

I was also at the session and would like to offer a friendly correction. Prof. Eskridge did not discuss "Justice Kagan's propensity to hire gay law clerks"; he talked about Justice Sotomayor's propensity to do so -- presumably based in large part on her many years on the Second Circuit bench. Justice Kagan is only in her first term on the Court, and has only hired one batch of law clerks. There is therefore no record of her gay friendliness in that regard.

Oh, now that you mention it, Commenter, I do believe you're right. It would make no sense to talk about Justice Kagan hiring gay law clerks. I'm going to correct this in the main article. Thanks for noticing!