As many of you are aware, tommorow is Day 1 of the bench trial in Perry v. Schwarzenegger, the suit challenging the constitutionality of Proposition 8. I've seen a lot of talk about this case on the blogs and in some legal reporters and I want to clear up misconceptions that many have about this case and about the current state of the law. I also want to state my opposition to this suit because I think there is a large misconception about those who are very unhappy with this suit. And I think that those LGBT advocates have not explained well to the non-lawyer public why they oppose this suit. Finally, I think it is important that all of us who want to repeal Prop 8 need to continue preparing for an election battle in 2012 and cannot sit back and rely on this lawsuit.
I want to stress that I am not in favor of same-sex marriage bans. Nor do I believe that they are constitutional in the least. Proposition 8 is an absolute travesty and it devastated me. For those who think I'm a concern troll, I'm not, I've been posting at DKos now for 5 years. But while many of you are supportive of this lawsuit, I am not and am hoping that we can repeal Prop 8 at the ballot box in 2012.
"Justice is not to be taken by storm. She is to be wooed by slow advances."
- Justice Ruth Bader Ginsburg
Sometimes I think that in this day and age of instant gratification and immediacy, people expect to have everything all at once. I know that that's the biggest criticism of the Millenial generation. But I think that gays and lesbians of all ages right now may be expecting instant gratification on our rights. Rights and liberties are not won overnight and are often won over long periods of time with careful and deliberate strategies. It's how racial equality and gender equality were won in the courts and if history is any indication, it will be how sexual orientation equality is won in the courts too. Not through a quick fix superstar law suit. And here is why this suit could fail and harm the LGBT community:
- The Courts are not gay friendly places. Courts have often ruled against gays and lesbians and numerous courts have been more than happy to make up law and ignore precedents in order to discriminate.
- Judges have the "ick factor" too. Don't forget the story behind the infamous Bowers v. Hardwick decision, a 5-4 decision that held the government had a right to prosecute gays and lesbians for consensual sex in private. The swing Justice in that case, Lewis Powell, who was confused and disgusted by gays and lesbians and told one of his clerks "I don't think I've ever met a gay person before." He cast the deciding vote against the most fundamental of gay rights. Well as it turns out, not only was his clerk gay, but Justice Powell in fact hired numerous gay clerks (at least one in every single term during the 1980's). And during World War II, he worked with Alan Turing, who was gay and later castrated for it. Yet Justice Powell, blissfully unaware of the sexual orientation of his clerks, had the "ick factor" and hurt a lot of people because of it. When we talk about the "ick factor" that affects votes, don't forget that judges have that too.
- We only get one shot at this. If the Supreme Court rules against same-sex marriage, that's the end of the legal battle for same-sex marriage in the federal courts for a good long time. It took 17 years for Bowers v. Hardwick to be overturned (it took 58 years for Plessy v. Ferguson to be overturned). While an adverse ruling could eventually be overturned, it could be a very long time.
- An adverse ruling in the Supreme Court will negatively affect the LGBT community in numerous ways beyond the issue of marriage. Ask yourself how many legislators will risk their reelections to vote for same-sex marriage when the Supreme Court has said that it's okay to ban it? How many state Supreme Courts will interpret their state constitutions in ways opposite to the Supreme Court has interpreted the federal constitution?
- The 9th Circuit is perhaps the only federal court (though perhaps the 2nd Circuit might qualify too) where a suit like this could win, which makes the case dangerous and all the likelier that the Supreme Court will wind up reviewing the case and reversing a same-sex marriage victory.
- Just because something is unconstitutional and wrong, doesn't mean the courts will agree. In order to win at the Supreme Court, you need 5 votes (and really for a case like this, you honestly want as many more as you can get to strengthen the legitimacy of the decision). I can't count to 5 right now and I think that many are just assuming that "liberal" Justices will automatically support same-sex marriage and Anthony Kennedy will be the swing voter. There's no guarantee that there are 4 automatic votes in favor of same-sex marriage. I'm not sure either that Anthony Kennedy is a swing voter. When he wrote the landmark pro gay rights opinion in Lawrence v. Texas, he specifically wrote that his decision did not create any requirement of government recognition of same-sex couples.
- The Equal Protection Clause does not mean what you think it means.
Yesterday, I saw a line on a blog on Pam's House Blend, an LGBT blog that promotes equality, that jumped out at me:
"In general, the Constitution says that states can't make discriminatory laws unless there's a good enough reason."
This statement is not true and unfortunately not true when it comes to gays and lesbians. Here is how the Equal Protection Clause actually works. The Court employs three different levels of review to different types of discrimination:
Strict Scrutiny: This type of review is reserved to racial, national origin, and alienage discrimination discrimination. If the government discriminates against you because of your race or your ethnic background, the law is presumed unconstitutional and the government better have a damn good explanation for it.
Intermediate Scrutiny: This type of review is for gender discrimination. Like strict scrutiny, if the government discriminates against you, it better have a damn good reason for doing so or it must be related to innate biological differences between men and women.
Rational Basis Review: This type of review is for all other kinds of discrimination. Generally, when states and the federal government discriminate against a class that doesn't receive heightened scrutiny, that discrimination is usually presumed constitutional. What this means is that unless you can prove that the government is absolutely batshit crazy, the law is constitutional....even though the law discriminates. And generally, the government doesn't even have to prove that its method is good either. The law can be a bad one but as long as the government has a proper rational basis for the law, the law will be sustained.
So then where does that leave us gays and lesbians? Rational Basis Review. This is the problem and why fighting in court is an uphill battle.
For a very long time, gay rights advocates had tried to get the courts to review sexual orientation discrimination with heightened scrutiny. These efforts all failed. The few times that lower courts would subject sexual orientation discrimination to heightened scrutiny, they would all get overturned. Now why does this make a difference? Because in federal case after federal case, courts applying rational basis review, upheld Don't Ask Don't Tell, DOMA, the firing of teachers, FBI agents, CIA agents, anti-gay adoption laws, and more. And for those of you who might be thinking "there can't be any rational basis to same-sex marriage prohibitions", think again. Court after court after court has held that same-sex marriage prohibitions survive rational basis review.
In what was a breakthrough moment for gays and lesbians in 2008 was when the California Supreme Court held that under the California Constitution, sexual orientation discrimination was subject to strict scrutiny. After California's ruling, Connecticut and Iowa followed suit. These are major breakthroughs but only in these state courts does the government have to show a damned good reason for discriminating against gay people. And I agree that that's the way equal protection should work. But it currently doesn't and convincing the federal courts to change course is a tall order to say the least.
- The California, Connecticut, and Iowa Supreme Courts are not representative of the current federal courts or the Supreme Court. I've made a point of this several times. It's not that those state courts are more liberal but they are comprised of Justices who have a different perspective. In both California and Connecticut, the majorities of the Court were comprised by ethnic and racial minorities. While there was a lot of criticism of Latinos and Blacks for voting for Prop 8, if not for Black and Latino Justices, there would be no decisions in favor of same-sex marriage. If you are a Justice or a judge and you can remember having to use seperate bathrooms and seperate waterfountains and seperate classrooms.......or if you are a Justice who was brought up in an interracial marriage.....or if you are a Justice or judge who's ancestors were among the 6 and a half million rounded up and slaughtered by one government and discriminated against my multitudes more........it's likely that you will recognize and attempt to correct the wrong of discrimination against gays and lesbians.
After every heartbreaking defeat, people will look towards the pro-LGBT Millenial generation and say "the kids are allright." Well that applies to courts and judges too. The Iowa Supreme Court is completely comprised of Baby Boomers. Boomer judges are the kids right now in the courts. Baby Boomers are far more likely than their parents generation to have gay friends, to know gay people, and to accept gays and lesbians. Remember though that the federal benches, with aging lifetime appointments isn't comprised of Democratic appointed Baby Boomers or racial/ethnic minorities.
- We have not seen a string of rulings in federal courts in favor of gay rights. In the past 14 years, there have been two cases where the Supreme Court ruled in favor of gay rights and both victories were extremely narrow and limited. Since it's important to compare, Brown v. Board of Education didn't just get decided out of the blue in 1954. There was well over 10 years of litigation that slowly pushed the Supreme Court towards overturning Plessy v. Ferguson.
- There are not enough states with same-sex marriage. There are currently only 5 states that allow same-sex marriage and the District of Columbia. 45 states have laws that prohibit. By comparisson, when the Supreme Court struck down interracial marriage bans, there were only 13 states with such laws on the books.
- What is being challenged now in California is actually the judicial remedy assigned by state courts who have struck down same-sex marriage bans but held that the state did not have to offer same-sex marriage. We have every paper right but the "word." That word may be important but many often cannot understand the difference. Only one state Supreme Court (Connecticut) ever struck down domestic partnerships/civil unions as not enough.
- While I agree that there is a fundamental right to marry (beyond simple equal protection) that is violated by this law, only one state Supreme Court has ever accepted that argument (the California Supreme Court). Finally, I don't agree with the gender discrimination argument but many lawyers, far smarter than I am, believe that same-sex marriage bans are gender discrimination and so for the sake of argument, I'll accept that they're right. Only one state Supreme Court has ever accepted that argument (the Hawaii Supreme Court).
So to sum up, while I can understand the excitement that so many have expressed for this lawsuit, I think that we'd be foolish to sit back and wait for the courts to intervene. I appreciate all the effort that the folks at AFER (their advisory board) have made. And I think that Ted Olson is entirely sincere in his opposition to these bans and his attempt to bring down Prop 8. But I won't sit back and pretend that their battle is easy or even a particularly good and sensible idea. The state-by-state strategy is not always the most pleasant or easy course and having to fight ballot box battles is not something that any of us like. But it's the route that we've been forced to go on. The federal courts, at least as they are currently comprised, are not going to be there to protect gays and lesbians (even if they should be). And while we can hope that this current suit will beat the odds and win, we must realize the difficulty that this case has embarked upon. We cannot wait and passively sit back waiting for the courts to strike down Prop 8 and other same-sex marriage bans. While the case progresses, we must continue to prepare for a 2012 repeal battle.
