So you've no doubt read by now that Ted Olson -- former Solicitor General of the United States, lead attorney for Governor Bush in Bush v Gore and [something] in the Arkansas Project -- is now involved in trying to strike down Prop 8. And many of you, I know, are assuming he's somehow trying to shipwreck the cause of gay rights.
I don't think so. First of all, his co-counsel in the matter is David Boies, who represented Al Gore in Bush v. Gore and whose liberal credentials are impeccable. This is a bipartisan effort, and while I think it's certainly an extension of existing law, it's not an unreasonable one to seek from the Supreme Court as presently constituted. Here's why.
A. This is not a cert petition challenging the California Supreme Court decision's yesterday and seeking to bring it up for review by SCOTUS; it's a new federal action filed last Friday in federal court in the Northern District of California challenging the constitutionality of Prop 8 itself. You can read the complaint here. (PDF)
B. The essential basis of the complaint is (1) Prop 8 violates gays' fundamental right to marriage and (2) their right to equal protection under the federal Constitution.
On the latter, Paragraph 43 is the key, because it argues that Prop 8 was passed out of animus towards a politically unpopular group:
The disadvantage Prop. 8 imposes upon gays and lesbians is the result of disapproval or animus against a politically unpopular group. The history of the enactment of Prop. 8 demonstrates that it was a backlash that stripped gays and lesbians of the rights previously conferred upon them by the California Supreme Court in In re Marriage Cases, 183 P.3d 384 (Cal. 2008). As such, Prop. 8 withdrew from gays and lesbians, but no others, specific legal protections afforded by the California Supreme Court and the California Constitution, and imposed a special disability upon those persons alone. Accordingly, Prop. 8 violates the Equal Protection Clause of the Fourteenth Amendment because it singles out gays and lesbians for a disfavored legal status, thereby creating a category of "second-class citizens."
This is crucial under Equal Protection jurisprudence. It aligns this case with City of Cleburne Living Center (the mentally retarded), Dept of Agriculture v Moreno (hippies) and especially Romer v Evans (gays) as cases in which otherwise-potentially-valid classifications were struck down by the Court as lacking in rational basis because they were motivated by animus instead.
Moreno, for example, concerned a challenge to a 1971 amendment to the Food Stamp Act which excluded from participation in the food stamp program "any household containing an individual who is unrelated to any other household member". To that, Justice Brennan wrote:
The legislative history that does exist, however, indicates that that amendment was intended to prevent so-called "hippies" and "hippie communes" from participating in the food stamp program. See H. R. Conf. Rep. No. 91-1793, p. 8; 116 Cong. Rec. 44439 (1970) (Sen. Holland). The challenged classification clearly cannot be sustained by reference to this congressional purpose. For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest. As a result, "[a] purpose to discriminate against hippies cannot, in and of itself and without reference to [some independent] considerations in the public interest, justify the 1971 amendment."
Romer was a 6-3 decision authored by Justice Kennedy -- in other words, there's five votes on the Court (assuming Sotomayor does not flip from Souter on this) for a decision that concluded as follows, with regards to an anti-gay amendment to the Colorado Constitution adopted by statewide referendum:
[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U.S. 450, 462 (1988), and Amendment 2 does not. ...
We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation . . . [is] obnoxious to the prohibitions of the Fourteenth Amendment . . . ." Civil Rights Cases, 109 U. S., at 24.
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
C. To be sure, Colorado's Amendment 2 was even more noxious than Prop 8. It withheld from gays -- and only gays -- the ability to seek legislative protection against discrimination from the state or any Colorado town. Insofar as it denied gays equal access to the political process itself (as opposed to the fruits of that process), there's a slender reed upon which Kennedy's vote could flip to the other side.
Still, consider the Prop. 8 question this way: is there a rational basis for the citizens of a state to withdraw the term "marriage" from its legal description of same-sex unions -- and only from same-sex unions -- when such a move seems solely to be motivated by the desire to stigmatize such couples compared to straight couples? In a way, Prop. 8 would have been more constitutional had it withdrawn more than the name "marriage" from same-sex unions and withdrawn concrete rights as well -- because then the state could argue for some cause-and-effect linkage in the amendment in demonstrating its preference for opposite-sex unions. Now, it's only about stigma and animus.
D. The final question is, "what's the worst thing that the Supreme Court could do here?" First off, I don't imagine this case making its way to the Court for several years, and its composition may change again by then. Still, the Court could hold that gays do not constitute a suspect class for Equal Protection analysis such that anti-gay classifications are inherently of dubious constitutional validity -- but that's no different from the status quo, and the absence of such protection under the federal constitution has not deterred states like Iowa from recognizing the right under their state constitution. It could go on to hold that states (through citizen referendum or otherwise) can lawful amend their constitutions to deny gay couples (and only gay couples) the right to call their unions "marriage," though the question of whether a minimum of civil unions themselves are constitutionally compelled will not be placed before the Court. But if it holds that, it does nothing more than reify a status quo in which we've got a lot of work to do to change public opinion.
Look: it would be great to live in a world in which the Equal Protection Clause (or the Privileges or Immunities Clause) were interpreted to empower federal courts to mandate equal treatment for gays under the law, across the board. But I don't believe the present Court has five votes for that viewpoint; I don't even know that there's more than one or two, if that.
E. No matter what happens with this case, there's still a lot to do in 45 states on the marriage front and in most states on issues of employment and housing discrimination, whether via legislation or efforts under state constitutions. With the Olson-Boies litigation, we may get the whole enchilada of judicially-mandated gay marriage rights, though I doubt it. We have a realistic chance at forbidding states from amending their constitutions to take away rights otherwise recognized for gays because such subsequent enactments are motivated by animus towards gays and have no valid legislative purpose.
And I truly believe there is no chance that we will lose the ultimate battle. Through the legislatures and the courts, whether it takes five years or fifteen, gay Americans will see their right to marry recognized in every state. It will not happen soon enough, but it will happen, and this lawsuit may push the ball forward one more necessary step.