The case challenging the constitutionality Proposition 8 filed in federal district court this past week by the legal odd couple of Theodore Olson and David Boies has sparked a lot of controversy ranging from whether Olson is taking the case deliberately to throw it to national GLBT organizations opposing the lawsuit as being a bad idea strategically. I'll note that Olson and Boies did notify and involve the some of the GLBT orgs opposing their suit, but they refused to "coordinate" (or rather submit to) the GLBT orgs direction on these matters. While I have a great deal of respect for Lambda Legal, the National Center for Lesbian Rights and Freedom to Marry, I think they are being either overly cautious or unreasonably controlling in their approach to marriage equality.
In his front page story, What the Heck Is Ted Olson Up To?, resident DailyKos constitutional scholar Adam B explains the approach Olson and Boies are taking and shows the solid framework of the suit they are pursuing. In the end Adam asks "what's the worst thing that the Supreme Court could do here?"
The answer is pretty much maintain the status quo. It is unlikely, given the current composition of the Court, that the conservatives could muster 5 votes to sua sponte rule along the lines of "Same sex marriage is unconstitutional and its existence in the states that currently have it is unconstitutional."
This is at heart a very minimalist Court and it is plainly apparent it will go no further in either direction than the current man in the middle, Justice Anthony Kennedy, will allow. Kennedy is a prototypical minimalist believing in not just deciding only the case at bar if possible, but only deciding the necessary questions to dispense with a case, leaving as much of the underlying questions undecided for future legislatures, courts or the people to decide. It simply isn't reasonable to assume Kennedy would sua sponte rule as Justice Scalia or Roberts would want and try to settle this matter for all time, especially in light of Justice Kennedy's history with respect to gay rights cases. Kennedy of course has ruled against gays in cases before him as both a appellate judge and Supreme Court Justice, but when he has done so, it been with a respect uncommon among radical conservative jurists. Moreover, when Kennedy has sided with the GLBT community, as he did in writing the majority opinions in both of the major GLBT rights cases the Court has decided in the last 20 years Romer v Evans and Lawrence v Texas, he has made it clear that discrimination against gays, lesbian, bisexuals and the transgendered is not simply going to be glossed over, but given the full weight of analysis. Indeed in Lawrence, Kennedy departed from his usual minimalist approach (an approach Justice O'Connor expressed in her concurrence in the case) because he felt that not only had the Court incorrectly decided the sodomy case of Bowers v Hardwick in 1986, but that Bowers, a case explicitly decided on due process grounds, had become a malignant cancer upon the jurisprudence of the Equal Protection Clause. In spite of Romer, in case after case many a court ruled against gays and lesbians on equal protection challenges simply by stating "It is permissible to discriminate against homosexuals since the activity that defines homosexuals can be made criminal. Bowers v Hardwick." Bowers had to be overrule lest it continue to infect and cloud the analysis the Court demanded lower courts follow in Romer.
While Justice Kennedy may not sit on the Court by the time this case reaches the high court, it is reasonable to assume that the manner in which he would rule would be the lower water mark for the GLBT community as his successor is likely to be no more conservative than he.
All that said, the question of whether this move is prudent or helpful to the cause of marriage equality remains. In a quick analysis of the suit (provided to Pam's House Blend by email in this post), Penn Law professor Tobias Wolff argues that in the manner in which Olson and Boies have chosen to fight Prop 8, they are unlikely to succeed due to a little known Supreme Court dismissal for want of a substantial federal question in a marriage equality suit from the 1970's arguing instead
By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different.
Personally I take a similar view as Adam B, that even if we end up losing before the Supreme Court...in a few years at that...we really wouldn't lose much in terms of the overall battle for equality. In reply to Professor Wolff's analysis, I responded with the following history and commentary:
I think the timing is right for this. With all due respect to Professor Wolff, the foundation has been laid in the federal courts in cases not just involving the GLBT movement, but others as well. I think it should go without saying that it was important to get Bowers v Hardwick removed from the equation given that, even though it was explicitly a due process case, in any case charging discrimination on the basis of sexual orientation all the court needed to do to turn back the challenge was to say "It is permissible to discriminate against homosexuals since the activity that defines homosexuals can be made criminal. Bowers v Hardwick."
It was also important to have our equal protection case, Romer v Evans. I'm sure as originally intended Romer was intended to be the counter balance to Bowers, but after the conservative Appeals Court in the Cincinnati case (which was virtually indistinguishable from the Colorado case) thumbed its nose at the Supreme Court, the Court bided its time to knockout Bowers. Lawrence provided that vehicle.
The foundation of marriage being a fundamental right has also been laid down by the sequence of marriage cases starting with Loving. After Loving, it was an open question whether this fundamental right to marriage was to be read narrowly or broadly. It could be seen that Loving was a special case exception because of its racial overtones and that in general challenges based on the right to marry were not actionable. That really didn't seem plausible as it could not be argued that a right to interracial marriage was "deeply rooted in this nation's history and traditions" given that among the earliest statutes in America that were not simply a porting over of English law were statutes against marriage, cohabitation and fornication by interracial couples.
Zablocki v Redhail and Turner v Safley confirmed that the right to marry is to be read broadly, encompassing more than just interracial marriage. A man that owed back child support could not be barred from marrying in Zablocki because it would violate his fundamental human right to marry and in Turner, an incarcerated prisoner could not be barred from marriage simply by virtue of being in prison (though the Court did recognize in some cases the removal of the right could be part of the sentence for the crime). Turner is also important because the Court properly recognized, contrary to the assertions of many anti-marriage equality activists of today, that marriage is of great importance even when there is little to no possibility of the marriage being consummated. No consummation means no children. Furthermore, the fact that in several states, certain persons are allowed to marry if and only if they can't procreate further debunks the supposed link that marriage exists only for the procreation of children. The entire sphere of cases dealing with privacy make apparent the ability or willingness to procreate is not nor can it be a prerequisite of or requirement of to marriage nor is marriage a prerequisite to or requirement of procreating as the number of children born to unwed couples amply testifies.
Another perhaps overlooked foundational block makes clear that any private bias some people may have against marriage equality due to their religious beliefs or some other reason cannot be used as a justification to deny same sex couples their right to marry. In Palmore v Sidoti, the Court ruled a lower court considering a custody dispute between a divorced couple could not include the subsequent interracial relationship of one of the parents as a consideration in determining custody. The lower court has surmised that having the child in the custody of an interracial couple would subject the child to social stigmatization and discrimination. The Supreme Court ruled however that such biases by individuals shall not be considered: "The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Just because thousands of religious fanatics oppose same sex marriage as an affront to their religion doesn't mean it can be banned for that reason.
Professor Wolff also talks about the progressive strategy of the Civil Rights Movement in building up to cases like Brown and Loving. Brown was preceded by stepping stone cases like Missouri ex rel Gaines v Canada, Sipuel v. Board of Regents of Univ. of Oklahoma and Sweatt v. Painter that established the right to desegregated public law and professional schools. After they had achieved the law and professional schools, they stepped down to public universities and colleges and then to the the public secondary and elementary schools. Charles Hamilton Houston and Thurgood Marshall executed that plan masterfully but there are significant differences in the modern analogy to marriage cases...there simply is no way to get the Supreme Court to rule on a bit and piece of marriage without the Court knowing full well it would be later used for full blown marriage. They know the chess game and are unlikely to permit it in this case. The game has progressed to the point where marriage is the next logical step for GLBT case law at the Court. The Loving case was built upon the case of McLaughlin v Florida which ruled Florida's law against interracial cohabitation unconstitutional, i.e. Florida could not make criminal consensual interracial sexual relations on par with the relations of married couples. Lawrence was our McLaughlin. Our consensual sexual relations can't be criminalized. Just as Loving was the logical next step after McLaughlin, so to is this case the logical successor to Lawrence.
I'm also fond of pointing out that in 1967 when the Court struck down every last remaining miscegenation law, just a year later over 70% of people still disapproved of interracial marriage in a Gallup poll. That disapproval was down from 94% in 1958 when the Court punted on the issue of interracial marriage. It took 24 years, in 1991, after the Loving decision for a plurality, not a majority, a plurality of Americans to approve of interracial marriage. Same sex marriage is so unbelievably ahead of that curve it isn't funny. Same sex marriage enjoys more approval now being illegal in 45 states than interracial marriage did for a generation after it was legal everywhere. And those number are even more disproportionate if you include the percentage of those that approve of civil unions or marriage.
From the time Houston and Marshall began down the path to declare segregation in schools invalid in 1938, it took 18 years to get to Brown v Board of Education. It took 19 years from the time of the California Supreme Court overruled its state's miscegenation law in 1948 to the time the Supreme Court ruled every miscegenation law invalid in 1967. That's 29 years from 1938 to 1967.
In 1993, Hawaii held its state's marriage law presumptively invalid for discriminating against same sex couples on the basis of sex. Based on the usual time frame for district court cases to reach the Supreme Court, the Olson/Boies case would be reaching the high court in about 2012...19 years after Baehr started this 2nd marriage equality for GLBT couples. There were a smal set of marriage equality cases in the 1970s in Washington state, Colorado, Minnesota, Texas and a few other places, meaning that the movement for same sex marriage will be hitting 40 years old in the early 2010's.
Our community has waited long enough. Sufficient groundwork has been laid. We have a growing tide of support that will only strengthen with each passing year. And the Court will have the enormous weight of history to bear in a case that will be remembered in the glowing light of Brown v Board of Education or the scorn of Dred Scott v Sanford and Plessy v Ferguson. Will they do the right thing? We can't know for sure, but neither did Houston and Marshall.
In closing, I'd also like to point out that there isn't much to lose here. If Professor Wolff is right that precedent is already stacked against us thanks to Baker v Nelson, having another case added on isn't much of a change in the status quo. The downside is the issue would be left to the states on a state by state basis...just as it is now. If we lose, we continue the fight at the state level a bit longer and try again in a few more years using the Roper v Simmons argument to overturn the prior decision as the dominos fall one by one.
In conclusion, I don't think this suit is something to fear. Part of the problem with the movement of late is we have taken small risks in hopes of small rewards yet this case poses the opportunity for large rewards with relatively minimal risk. It is too great an opportunity to pass by. At worst in maintains the status quo and continues the education process of the American people on fundamental rights, the countermajoritarian principle and the struggle and plight of GLBT Americans. At best, we could see full marriage equality from coast to coast.