Is a Federal Prop 8 Lawsuit Really Something to Fear?

Should we lobby legislators for our civil rights? Or sue for them? That’s the central argument behind whether to support the federal lawsuit from Ted Olson and David Boies that could take Prop 8 and, effectively, any same-sex marriage ban all the way up to the Supreme Court. But what if SCOTUS doesn’t look kindly on us, and shoots down the argument?

It’s a very real possibility, but last night on Hardball Olson and Boies made the case that things are swinging in their (and thus, our) favor. As we discussed on Wednesday, many gay rights groups don’t agree with this strategy, fearing that an unfavorable SCOTUS decision will put us in a bigger hole than we are now. Instead, much of Gay Inc. — including ACLU, Lamda Legal, GLAAD, GLAD, HRC, Victory Fund, Log Cabin Republicans, and PFLAG — wants to win same-sex marriage at the legislative level, or at least hold off on going the courtroom route until the climate improves.

Are their fears unfounded? Olson and Boies think so. And so does regular gay rights scribe craigkg:

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.

Is there really not “much to lose here”? And if SCOTUS rules against us, can we really take things back to a state-by-state level? Critics argue a SCOTUS decision that permits discrimination against same-sex couples would empower anti-gay groups (and legislators) to continue banning civil rights … because the justices said it was okay.

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  • Myles

    Well first it would have to GET to SCOUTUS.

    But you know after Prop 8 was upheld we did lose alot California set a precedent that by ballot initiative rights of a minority can be taken away.

    But an injunction against the California Court decision means the situation reverts to what it was before Prop 8 I believe meaning Californians would be able to marry until the US Supreme Court decides the issue–perhaps several years from now and that would mean 1000’s upon 1000’s of more marriage which would make it harder uphold.

    Also I can tell you that I am more willing to place bets on Olson/Boies than any of the others. I listened to the oral arguments and read the briefs of the Prop 8 case. They were crap. Those guys didn’t have a chance against Starr. Olson/Boies can (and will) hold their own. They also want to win because it attaches thier names to a VERY IMPORTANT case.

    As far as the “prganizations go” I am through with them myself. I mean minutes after the Prop 8 decision came down they were alreay posting messages and asking for money. Maybe they are afraid if Plsen/Boies wins they’ll set a precedent O mean proving that Gay and Lesbian Marruage would then be CONSTITUAL sets up DOMA to be removed because it too would be unconstitutional.

    Look it doesn’t have to be one or the other. Thats part of the problem that we have. We do this piecemeal state bt state shit and we don;t focus on more than one battle at a time and don;t use different stratagies at the same time.

    NOW is the time to push from every front. Continue to work on your neighbors and the folks at the ballot box. Continue to lobby the legislature to work on fixing this injustice. And, last but not least, support this effort to have a federal ruling to not only get equal marriage rights for gays and lesbians but Equal Rights period.

  • Robert, NYC

    The thing is, the SCOTUS is stacked with five catholics and with Sotomayor, six. That’s one of the worst imbalances ever. Nobody yet knows how Sotomayor stands on equality issues either. I’m uneasy either way. Can anyone really believe that the Supreme Court would give the nod to our equality the way its currently stacked? Impossible and unrealistic. This could backfire on us making it even harder to get equality in any state and we’d probably see more initiatives to get DOMA in more states. Not a good move in my opinion. I’d rather see the states decide, slower process yes, but we now have to make sure that no initiatives and no state constitutional revisions are permitted, just like Connecticut did. Since when should voters decide who gets what rights anyway? To me that’s mob rule, tyranny of the majority. Civil rights should and must be increased not decreased in a pure democracy and we’re definitely not that!

  • Flex

    To answer your first question, “should we lobby our legislatures?” We can’t. Their hands are tied in California. The voters have prohibited them from passing marriage equality laws.

    A serious injustice was handed down on Tuesday, the 26th, and a repeal of proposition 8 will not correct the poor judgement by the California Supreme Court. They have wholly ignored the question of it’s constitutionality.

    To add onto Ted Olsen’s comment about “Japanese citizens/noncitizens.” What message has the California Supreme Court sent to us? If a Japanese immigrant is granted citizenship, here in the U.S. and assuming they are straight, they have more rights than we do. They can marry the person of their choice, and we can’t.

    If the SCOTUS is unwilling to help us in our cause, the least they could do is simply not hear our case. It would seem like an activist court if they were to accept the challenge only to shoot it down.

  • frisky

    The Japanese immigrant can’t become president so not all citizenships are equal.

    Losing in the Supreme Court would prob be the second best thing to happen. Setbacks are the best galvanizers. Also as others have said, the state by state efforts will continue anyway. If its heard and they lose, I look forward to vicious and relentless outings of any and all public figures and Melissa Etheridge-style tax revolts!

  • Flex

    @Robert, NYC:

    The court may not be as prejudiced as the media would have us believe. Kennedy, the justice who has been lassoed together with the potential “no” votes against gay marriage, wrote the majority opinion in L. v K. He also signed onto the majority opinions striking down R. v E. in 86, and he also voted to prohibit Colorado citizens from blocking people being sued for sexual orientation discrimination. The Colorado case was a voter referendum.

    In my opinion, Kennedy, and Sotomeyor, would be the question marks, not definite “no” answers.

  • dgz

    i think this amounts to a legal hail mary pass. but, i’m not sure if waiting another decade is palatable to us, and i’d rather have these two on the job.

    they’re sure to lose, but i’m with frisky — nothing riles ’em up like a defeat, so… silver lining?

  • TomL

    The one thing that has changed is that in California, voters took away a right that was recognized by the courts. I see some similarities in this case with Colorado’s Amendment 2.

    I think conditions have changed enough that going to the federal courts at this time may be a smart move.

  • Robert, NYC


    Flex, maybe not, but Scalia, Alito, Thomas and Roberts would NEVER support marriage equality and as for Soto, who knows where she stands on this issue? I admire Olsen and Boies and their courage but I think its a double-edged sword. My gut feeling is the outcome would be disastrous for us for reasons I stated in my last post.

  • bluprntguy

    This case first will go through the 9th circuit court of appeals, an infamously liberal court. It seems that they will likely rule in favor of marriage equality. While gays and lesbians face a huge unknown in the Supreme Court, the defenders face an even graver challenge. If the court overturns Proposition 8, that will eliminate constitutional amendments in EVERY STATE that has passed them and make marriage equality the law of the United States OVERNIGHT.

    The voters of California will be voting in 2010 to eliminate prop 8 in some fashion. With at least one court against the measure likely by that time, what are the chances that the public will vote to uphold the ban? Additionally, what are the chances that our friends at the National Organization for Marriage are likely to be less aggressive with the next election. If Proposition 8 is overturned at the polls in 2010, the lawsuit presently filed will be dismissed BEFORE it gets to the Supreme Court. It seems that those organizations that are against marriage equality are likely to cut their losses and allow marriage equality to move forward in CA to avoid a potential loss at the federal level.

  • Michael vdB

    I say fight them on every front whether it be through the courts, legislatures, or public relations. Equality has been slow, but as in Canada, it can be realized. Be loud, be clear, be non violent. Never let up, never give up.

  • MackMike

    One thing I’ve not heard is the sheer impact that these two attornies are going to have on so many who have been either on the fence in this issue or who have been indifferent. Chris Matthews looked positively backward and weak in his interview with these to men the other evening, as he demured, “well, you know, I’m not sure where I am on this whole thing,” before asking them his round of questions.

    Frankly, I don’t wonder so much about the dellusional religious right, trying to educated them is like banging one’s head against the pew. Those we need to reach out to are those who are misinformed and uncomfortable–their issue less about orientation than the notions of masculinity. I think that’s critical, because it isn’t our masculinity that they are quite so uncomfortable with, but their own–it is what makes so many align with the GOP, even when it is clear that the Democratic party has their best interest at heart. To be a liberal is to be somehow more brainy, more a complainer, less a cowboy, less tough, etc. Not entirely unlike Matthews, they sacrifice what their heart tells them is the right thing in an effort to strike a greater pose as “one of the boys.” As they see other high profile and successful straight men argue for our rights, free of embarrassment and shame, other straight men will lay their insecurities about their own masculinity aside and begin to question the motivation behind their own anti-gay stances.

    Whether this ever makes it to SCOTUS, I predict that the coalescing of both these men, their aggressive and outspoken support (whether it is genuine or not), is going to have a positive impact at the voter level. It’s like a gift, and I’d not be surprised to see those few voters we needed to reach here in California be presented to us in a bow, simply because these two high profile attorneys from differents sides of the isle, stood up and took a stance for our civil rights. Between a grassroots effort here with volunteer canvassing and the profile of this case (particularly from Olson), we now have a real shot at 2010, when before I was dubious.

    Don’t forget the power of perception!

  • Sam

    I’m becoming more and more convinced that this is being funded by a bunch of selfish California gays saying “we want marriage NOW and we don’t care who it fucks over.” It’s really easy to say “we should push forward on all fronts” when you don’t have to live with any of the consequences if you lose.

    If this case goes forward and fails, California still has the option of repealing Prop 8 through the ballot. But all the other states that might be able to get marriage through the courts will have those chances completely obliterated. Yet the Californians in this case don’t care. They want theirs and screw everyone else.

    Californians should repeal Prop 8 through the ballot box. Trying to do it through the federal courts is a selfish and short-sighted gamble with the ability of every other state to gain marriage rights for themselves.

    The chances of this case winning at the Supreme Court are slim-to-none. If you really think “there’s nothing to lose,” please, please, PLEASE read the analysis out everywhere that outlines just how much we stand to lose and how tiny our chances of winning really are.

    Here are a few to get you started:

  • John K.

    @bluprntguy: Very excellent points! This might help Prop. 8 get overturned at the ballot box, and then die for mootness before reaching SCOTUS. Brilliant!

  • John K.

    @Sam: There aren’t that many state courts left to fight in. 30 states have constitutional bans, which means their state courts are powerless to overturn those bans. By the time this decision comes down from SCOTUS, we’ll have MA, CT, VT, IA, NH, ME, NY, NJ, probably RI, maybe IL having marriage equality already through the courts or the legislatures. That’s 10 more states, and CA will certainly repeal Prop. 8 at the ballot box very soon after losing at SCOTUS, if that is the outcome. And don’t forget that the WA and MD courts already upheld their states bans, so obviously those courts didn’t need negative persuasion from SCOTUS to uphold those bans. That makes 42 states where the courts are powerless, unnecessary, or already hopeless going into a SCOTUS challenge. That means a SCOTUS loss could only possibly actually affect 8 states as far as negatively persuading courts that might actually have to rule on the issue and have stood a chance to rule in our favor in the first place.

    Contrast that to what happens if we win at SCOTUS: national final victory overnight. What about the people in states with constitutional bans that passed with 80 percent of the vote? SCOTUS is their ONLY hope. There are many more of them than the 8 states with statutory bans that can be overturned by the legislature in the event that a negative SCOTUS decision taints their courts.

  • Alec

    That means a SCOTUS loss could only possibly actually affect 8 states as far as negatively persuading courts that might actually have to rule on the issue and have stood a chance to rule in our favor in the first place.

    But really, a SCOTUS loss could impact every state and make a future successful challenge that much more difficult. Pace v. Alabama was decided in 1883; Loving v. Virginia in 1967. Moreover, in states with same-sex marriage a shift in the legislative environment (thinking IA in particular) might result in a state constitutional amendment, and a federal loss would impact them as well. The case would also be highly persuasive in states with statutory bans if they were challenged on the basis of state equal protection and due process.

    It isn’t that the strategy isn’t being pursued; it is. But it is being pursued at a certain pace and in a certain manner.

  • John K.

    Sorry, I miscounted I think. By my estimate, there would be 43 states where the courts are powerless, unnecessary, or hopeless by the time this decision comes down, not 42. That leaves only 7 states where the courts might be tainted by a negative SCOTUS decision.

    I understand where those against this suit are coming from. I didn’t like the idea when I first hear it. I thought it was very dangerous, and I’ve been touting that line for the last two years since I got involved with these fights. However, the idea is growing on me. Maybe it’s just rationalizing because it seems like the suit will happen whether I like it or not, but I’m thinking the rewards outweigh the risks here. Public opinion is going in one direction, and that’s in our favor. By the time this reaches SCOTUS, public opinion will be even further in our favor. There might even be a majority who support gay marriage in the US by that time. Over 85% of the American public disagreed with interracial marriage when SCOTUS handed down a unanimous Loving decision according to a GALLUP poll shortly after.

    I admit that we might be thinking too emotionally here, and that if we wait just a few more years until we have all of those states I listed before going to SCOTUS, our chances would increase. But, you know, SCOTUS has overruled itself plenty when it got things wrong, and it didn’t always take all that long. It ruled in 1940 in Minersville vs. Gobitis that school students could be compelled to salute the flag. It ruled in 1943 in WV Board of Ed v. Barnette that school students could NOT be compelled to salute the flag. That’s a complete reversal in only three years. While Brown took half a century to overturn Plessy and Lawrence took about 17 years to overturn Bowers, we need not lose all hope if we lose now in SCOTUS. If we lose now, by the time the Court changes enough where opponents of this suit would agree it was the right time, plenty of time would have passed to challenge it again anyway.

  • John K.

    @Alec: You apparently missed my point that there are only about 7 states where a court might overturn a statutory ban in the first place. Compare that to 30 states that have little or no hope without a federal ruling (my numbers may be one or two states off, but you get the point).

    I happened to be writing about SCOTUS overturning it’s bad precedent while you were leaving your comment, so I will refer you to my post right after yours for my thoughts on that. I don’t think it will take 80 years for SCOTUS to overturn a bad precedent in this case. Even though we’ve got a long way to go, the learning curve is getting better, and SCOTUS has been more willing of late to rectify its bad decisions without as much delay. As I pointed out, we saw a complete reversal in only 3 years in one instance.

    Again, I think the rewards outweigh the risks here. If we wait, very few states win. If we go now and lose, very few states really lose anything. If we go now and win, EVERYONE wins.

  • Alec

    @John K.: No, I understand the point about the few remaining statutory bans. But CA’s constitutional ban is still far from the ideal candidate for a successful court challenge.

    Many of the states that banned same-sex marriage banned any relationship recognition for gay couples (MI, OH, VA, FL and various others come to mind). Currently, the 8th Circuit is the only federal circuit court that I know of that has addressed a state constitutional ban, the worst of the bunch, that prohibited the recognition of same-sex relationships only.

    CA, by contrast, only limits the use of the word “marriage” to heterosexual couples. The CA Supreme Court made it extremely clear how narrow Proposition 8 was.

    If the CA case goes forward and we lose, we’ll probably have foreclosed federal challenges to bans that are much, much worse in scope. But a more incremental court strategy, beginning with something like the VA ban or DOMA, makes much more sense, imo, because a successful case will allow us to build up precedent.

  • John K.

    @Alec: I hear you. But don’t forget that CA now has different classes of gay couples as well: those whose marriages are recognized and those whose marriages are not. I’m not sure if that distinction is being addressed in this suit, but I would imagine so.

    Also, what you might get in this case is a ruling that simply says there is not right to “marriage” while leaving the issue of equal benefits untouched. Not as bad a precedent, and still the same reward if the case comes out the other way. And the Court could always rule that there is a right to at least equal benefits, which, while being a loss on Prop. 8, would help all of those states that don’t recognize gay relationships at all, but still leave us to do more state-by-state work on full marriage and then come back to SCOTUS down the road.

  • John K.

    @Alec: Yeah, the more I think about it, the more I think the Court would leave unaddressed the issue of equal benefits in this case, which would NOT foreclose bringing a challenge to the scarier bans.

  • Alec

    @John K.: I’m sure the suit will attempt to address it, but I think the retroactivity concerns supplies the rational basis for the distinction between the two classes of gay couples.

    Maybe the Court will address equal benefits, but since they don’t need to I doubt they will. Assuming it even makes it that far, which is not guaranteed.

    I’m agnostic on this suit. I’d prefer one addressing a more sinister ban, and some better case law. But perhaps a better statutory review standard will emerge from this litigation, even if Prop 8 survives. An intermediate scrutiny standard would be a welcome change.

  • Alec

    @John K.: Yeah, I don’t think they would. Problem is, the lower courts would probably be persuaded that there’s no distinction, for federal constitutional purposes.

  • John K.

    @Alec: I think if we get beyond rational basis we have to automatically win, right? What POSSIBLE “important” government interest is advanced by Prop. 8 that doesn’t render it both overinclusive and underinclusive? Level of scrutiny is key to this case. What is amazing to me is how anyone can say that sexual orientation does not qualify under the current test for heightened scrutiny in the first place. If I were the attorneys here, I would focus heavily on establishing that sexual orientation is a suspect or at least semi-suspect class, which it clearly is. The only way to hold otherwise is to be irrational or biased, which unfortunately, many of the current justices are. But, that would be the ballgame right there if we got heightened scrutiny.

    I’m not sure what better case law you think we’re gonna get from the Courts though. What more can we ask for from SCOTUS before going for marriage? DADT? We’ve already got circuit court decisions on that. And we’ve got three state supreme court decisions holding that marriage, not civil unions, is the only thing that can satisfy state equal protection, and we’ve got several state supreme court decisions that mandate at least civil unions. The only thing we lack is more states having enacted marriage through the legislature. I don’t think we’re going to get many more state court decisions.

  • Alec

    @John K.:

    I think if we get beyond rational basis we have to automatically win, right? What POSSIBLE “important” government interest is advanced by Prop. 8 that doesn’t render it both overinclusive and underinclusive? Level of scrutiny is key to this case.

    You’ll find no disagreement with me; but when it comes to the Court I’m cynical enough to trust in their ability to find a way (or rather, the ability of Justice Kennedy to find a way).

    If I were the attorneys here, I would focus heavily on establishing that sexual orientation is a suspect or at least semi-suspect class, which it clearly is.

    Absolutey. I’m assuming that will be fully briefed. I’m just not sure what the courts will do.

    What more can we ask for from SCOTUS before going for marriage? DADT? We’ve already got circuit court decisions on that. And we’ve got three state supreme court decisions holding that marriage, not civil unions, is the only thing that can satisfy state equal protection, and we’ve got several state supreme court decisions that mandate at least civil unions.

    Well, there is an as applied challenge to DADT applying a heightened level of scrutiny proceeding in federal district court; the Ninth Circuit sent it back last May or June, and an en banc rehearing was denied in December (with some dissenters). Note that the government chose not to appeal that case. There’s also the Massachusetts district court DOMA challenge.

    Really, I’d prefer a challenge to one of the nastier bans first, although there are some abstention issues outside of California (save in MI, where there’s some guidance as to its reach). I’d also like to see legislation and government action at the executive level that erodes the impact of DOMA (federal benefits for partners, immigration sponsorship, etc.). The passage of ENDA would help with heightened scrutiny, judging by the IA decision (as well as NY, although it didn’t work to our benefit there).

    Like I said, I’m agnostic on all of this.

  • Sam

    @John K.:

    I think you’re not including all the potential downsides to a loss. What if SCOTUS rules that keeping same-sex couples out of marriage doesn’t violate equal protection? Are you okay with the rash of states that will then ban adoption for same-sex couples as well? What about other ramifications of a court ruling that says equal protection doesn’t apply?

    Plus, there’s the opportunity cost as well. If we lose and then the court looks winnable a year or two later, we will have screwed the pooch. Yes, we can go back down the line, but that’s going to take many years – years where we could have had same-sex marriage. And I don’t agree with your “by the time the court changes” argument. Scalia’s retirement could be all we need.

    “Again, I think the rewards outweigh the risks here. If we wait, very few states win. If we go now and lose, very few states really lose anything. If we go now and win, EVERYONE wins.”

    I think it’s important to point out: these are POTENTIAL rewards. I could bet everything I own on the roulette wheel, and while the potential rewards would be great, the risk just wouldn’t be worth it. I don’t think our chances are good with this court. I could see us going down 6-3.

    I don’t think we should chance it on these odds and I’m not alone…ALL the major LGBT groups agree. So who are these arrogant straight pricks to come in and play poker with our rights? How is it not selfish for some rich Cali-gays to blow our one (short-term) shot at SCOTUS when they could reverse Prop 8 at the ballot box?

    “I’m not sure if that distinction is being addressed in this suit, but I would imagine so.”

    Don’t be so sure. I’ve heard that the lawsuit could have been more narrowly crafted to address only this issue – and thereby avoid the devastation a broad loss will cause – and it was not.

  • Alec

    @Sam: I think the opinion could be fairly complicated or limited. The real issue is that the scrutiny standard will need to be addressed in this lawsuit, and as you point out that could have an adverse impact in other areas.

    But I think the decision would be 5-4 either way. I don’t foresee a 6-3 loss, if only because I think the “liberals” would apply some form of heightened scrutiny.

  • Tim and Earl

    We 2American men were married in Canada in 2003 but we remain legal strangers across USA.

    We’ve been together in love 33 years. We say the time is now to address this federally.

  • Sam

    @Alec: I’m guessing you’re just 100% confident that whoever replaces Souter (Sotomayor could still get Borked or Meiered, and I’m not 100% sure she’s with us anyway) is going to be totally willing to overturn laws in 40+ states (plus DOMA) so soon into their tenure?

    I’m not that confident…

  • Alec

    @Sam: I’m confident about the so-called “liberal” wing adopting a heightened standard of review. I’m not confident that will result in marriage equality across the country.

    Remember, the explicitly anti-gay restirctions on marriage were adopted in the space of 12 years, much like the adoption of the explicitly anti-gay sodomy laws in the 1970s in TX, OK, KS and MO.

    Anyway, I’d prefer it not be CA for the reasons I’ve outlined above, but I do think it will be 5-4, at least in terms of the scrutiny, if not the remedy.

  • The Gay Numbers

    I am less concerned with the states than I am with the impact federally on precdent. A bad ruling now would slow down a ruling a few years (as in 5) from now when the courts are more likely given turn over to agree with us. Justices prefer on average to follow precedent. Many have said they follow Roe v Wade not because they agree with its reasoning, but because it is precedent. A bad ruling on the scrutiny level here would mean that other cases are tied up by the level of scrutiny as other justices would agree with this decision ou tof a senset of following precedent. One hopes this case works its way through the courts at a normal pace.

    RE Wealthy gays- I agree. Part of the issue with the gay movement is that wealthy gays and, indeed, upclass white gays often do not have any other sense of “struggle” than being gay. Thus, they tend to bring with them all the since of fast turn over and entitlement that one expects of the majority. Does anyone understand that Brown v Board of Education was the completion of years of litigation meant to test and push the boundaries of the law? This approach that the Prop 8 case will take will require several logical leaps by the court that has not been made inthe past.

    Remember, they could have decided other cases on equal protection, but did not. They could have found heightened scrunity in the Colorado case, but choose to make up a new one because the animus was so undeniable to the reasonalbe jurist.

  • Inukumaru

    This gay novel has pretty extreme views about religion and being gay all done in a sci-fi style sory, the writer was even almost killed when this book was first published. After being banned in his own country it is now available.
    check the plot – As predicted by Isaac Newton the second coming happened and as the world waited to see what was about to happen an appointed man was sent to meet God, hours later God had vanished and the man came out immortal; no apocalypse, no destruction and no salvation. This gave birth to a chain of holy wars that almost chattered Earth’s civilizations and so giving birth to a mass colonization of planets to ensure peace by separation. Thousands of years later all was at peace by until Endings were born; humans connected to their planets in such a way that they are capable of destroying them should they wish it. Now Earth’s Ending has been born and the day to pass judgment draws near.
    it can be found here–a-song-for-the-end-/7182389

    Apart from that it is very hard to find

  • Alec

    @The Gay Numbers: Well, Lambda’s litigation strategy, and that of others, mirrors, in many ways, the litigation strategy of the NAACP. That was one of the reason states like Vermont and Massachusetts were chosen earlier.

    I think with Romer they were really pushing the boundaries of the rational basis test, but the important thing is that they’ve never addressed heightened scrutiny because it wasn’t necessary. That won’t be the case with a marriage challenge.

    We’re also assuming that there will be an appeal to the 9th Circuit and, from there, an appeal to the Supreme Court, and that the Court will grant leave. They may not. And in the interim the composition of the court could change. The whole issue could be mooted by a 2010 proposition.

  • The Gay Numbers

    @Alec: I prefer the Lambda strategy because it allows us to have limited decisions to figure out where the Court stands on various elements that would later become important for greater decision. The other aspect of the right case going forward is that it shifts the factual arguments (which despite what people say do matter) that would be at play. Many assumptions that straight, white, and heteros would make could be addressed before we get to the Brown v Board type decision. That’s the whole point of say the DOMA clause 3 suit or Dont Ask, Don’t Tell. To push the court in its own logic in a certain direction, and then once they have gottten there, push for the last leg. Most of the people saying go forward do not appreciate the importance of pushing the right buttons when they need to be pushed rather than letting ego get in the way.

  • Alec

    @The Gay Numbers: I’m with you for the most part. One of the reasons I am skeptical about the CA case is that the factual background wouldn’t be nearly as sympathetic (and yeah, they are swayed by those considerations) as, say, a case challenging the VA ban.

    We’ll see. Down the rabbit hole we go…

  • jose

    @Myles: I FEEL THE SAME WAY!

  • jose


  • The Gay Numbers

    @jose: @jose: Because of who makes up the court. It’s as simple as that. Most of your type of post reads like David versus Goliath, but ignores that Goliath is the Courts. So long as the Courts are not a neutral arbitrator, your comments is just false.

  • The Gay Numbers

    @Alec: True- there are too many self absorbed gays who will try for this under the theory they are entitled rather than the theory “how can we win what we are entitled to”

  • Skeeter Sanders

    As a married, openly bisexual, African-American male whose wife is white, I find it incredible that those who are arguing against taking the fight for same-gender marriage equality to the federal courts are so blind to recent history.

    They have completely ignored the fact that the U.S. Supreme Court — despite its conservative majority — ruled TWICE in favor of advancing the civil and constitutional rights of gay and lesbian Americans in the last 13 years.

    And both decisions were written by the moderate-conservative Justice Anthony Kennedy, to boot.

    I can’t believe that supporters of same-gender marriage could forget the high court’s 1996 Romer v. Evans decision, which struck down Colorado’s voter-approved Amendment 2 that barred anti-discrimination laws protecting gays, and its 2003 Lawrence v. Texas decision that struck down the last remaining anti-sodomy laws — effectively removing the last legal justification to bar gay and lesbian couples from marrying by fully decriminalizing their relationships, forcefully repudiating its wrongheaded 1986 Bowers v. Hardwick ruling.

    Combine that with the high court’s landmark 1967 Loving v. Virginia ruling striking down laws that barred interracial marriages, in which the justices UNANIMOUSLY held that the freedom to marry is protected by the Fourteenth Amendment.

    The hard-line social conservatives on the court are STILL A MINORITY of four justices, despite former President George W. Bush’s appointment of Chief Justice John Roberts and Associate Justice Samuel Alito. Justice Kennedy, the court’s critical swing vote, has demonstrated time and again that he is a more of an old-fashioned libertarian conservative (Although he still has a personal problem with abortion, Kennedy has been unwilling to overturn Roe v. Wade).

    The fact that it was Kennedy who wrote the majority opinions in both Romer and Lawrence surprised both sides — and angered the virulently anti-gay Religious Right, who’ve hated Kennedy ever since.

    Given that the hard-line social conservatives are still one vote short of a majority — and with President Obama’s nomination of Sonia Sotomayor to the court — it is highly unlikely that Prop. 8 can survive a challenge under the Fourteenth Amendment, especially with the Loving decision likely to be the dominant precedent.

    And I’ll tell you another fact of history: When the high court handed down its ruling inthe Loving case, interracial marriage was far, far more vehemently opposed by a much larger majority of the public than same-gender marriage is now.

    Opinion polls taken at the time of the Loving decision found that up to 76 percent of the public opposed interracial unions — especially marriages between black men and white women. The irony that Richard and Mildred Loving were a white man and a black woman is hardly lost on me.

    My own parents were an interracial couple — my mom was black and my dad was a Cherokee Indian — and until the Loving decision, my mother’s home state of Louisiana refused to recognize my parents’ marriage. Had I been born in Louisiana instead of in new York in 1953, I would have been branded “illegitimate” by the State of Louisiana.

    Had my wife and I been born 50 years earlier than we were, our marriage in the 1950s or 1960s would have likely resulted, among other things, in our being awakened in the middle of the night by a cross burning on our front lawn — even in Vermont, where we live. And I’m not going to even speculate on whether my wife (and her family) would have been accepting of my bisexuality, let alone my being nonwhite, back then.

    What amounts to the “gay leadership” — still as white-dominated today as it was back in the 1970s (although far less male-dominated) — is being short-sighted in not recognizing this history. They also have very little faith in the rightness of their cause in light of that history. But then again, given the deep-seeded distrust between the gay community and the religious establishment, that should not be all that surprising.

    People wonder why Ted Olson, the attorney who represented Bush in the Bush v. Gore case in 2000, would join forces with his former opponent in that case, David Boies to challenge Prop. 8 in federal court. Has it occurred to them that Diane Olson, who with Robin Tyler became one of the first same-gender couples to legally marry in California, may be related to the attorney (perhaps a sister or a cousin)?

    I say it is a colossal waste of time and energy to go the state-by-state route — especially now that same-gender marriage is legal in five states. NOW is the time to go to federal court, not only on Fourteenth Amendment equal-protection grounds, but also under the Full Faith and Credit and Entitlement Clauses (Article IV) of the Constitution. Indeed, the time to go to federal court is at least four years overdue.

  • Robert, NYC

    @Skeeter Sanders:

    Skeeter, you make some excellent points and references to cases as precedents. I’m beginning to reconsider my view on getting behind the federal route. Thank you for providing that important information. Maybe Olsen and Boies know something that we don’t know.

  • ChrisSF

    There is a great deal to lose from an unsuccessful Supreme Court challenge. We could end up with a ruling that discrimination by the government against LGBT people is entitled to only the lowest level of scrutiny under the Constitution, that there is no constitutional right to marriage equality, and that it is perfectly rational to treat LGBT families less favorably that families headed by opposite-sex couples because of some interest in having children raised by married opposite-sex couples. Those rulings would be the law of the land and would cast a long shadow over every legal case and political debate concerning domestic partnership, adoption, parenting, Don’t Ask Don’t Tell, DOMA, employment and housing discrimination laws, immigration, and every other issue affecting our community for years to come. Don’t believe me? Go back and look at how Bowers v. Hardwick, which upheld the constitutionality of sodomy laws back in 1986, affected nearly every gay civil rights debate and hurt every legal case seeking to protect gay rights until it was finally overturned in 2003. Now, it’s possible we could get a bad result reversed in only 17 years as with Bowers (which was record time for the Supreme Court to reverse itself), or that bad result could be on the books for more like 70 years, which is what happened with race segregation in the South. Personally, I’d prefer to go to state by state until we can get to the Supreme Court with a case we KNOW we can win.

  • Basil

    I haven’t read all the comments here, so I apologize if I am being duplicative. I have few notes, for Alec, who raises interesting points

    1. California is the ideal state to challenge the ban on same-sex marriage. CA, in theory, is “separate but equal” for same sex couples because of domestic partnership legislation. The same was true of education in Topeka, Kansas, — in terms of resources, there apparently was not a huge disparity between black and white schools, they were “separate but equal”. Marshall challenged segregation in Topeka and not in the deep South for this reason. He did not want the Court to just say “well in this instance you provided this group “X” but provided the other group “X+Y” and that was unequal, but “separate but equal” can still stand. The Court found that even separation of any sort is inherently unequal. This comports with the finding of the California Supreme Court in the Marriage Cases last year (now overruled by Prop 8), as well as Iowa’s court (apparently well thought of), which based a lot of its judgement on federal precedent. By picking a state that is “nearly equal”, the case has a promise of stricking down all the anti-gay amendments, no matter what their construct. If SCOTUS holds separate but equal to be legal with respect to sexual orientation, how can it still hold it illegal with respect to race? Would that not potentially void Brown v. Board of Ed, and would that not limit how far in the wrong direction that SCOTUS would go? (I wish I knew the answer!)

    2. California is the ideal state to challenge because of the Roemer case. Citizens, motivated by animus towards gays have enacted an amendment stripping them of their existing rights. This is almost identical to what happened in Colorado. The only difference is that in the intervening decade, the Court has struck down laws criminalizing homosexuality, which further strengthens our case. Justice Kennedy, who wrote the Roemer opinion, took a very dim view of Colorado’s amendment, designating a minority and eliminating their existing rights.

    Those are the arguments for this case. Because of the “separate but (nearly) equal” status of California gays, coupled with the creation now of an intermediate class of 18,000 couples with valid marriages, but no right to remarry in the event of divorce, and because this case stripped an existing right — it does represent a unique opportunity. It may well be that the anti-gay lobby has overreached and this is our opportunity to bring down their strategy of pushing hate amendements in every state so as to enshrine discrimination forever.

    I tend to believe that the state-by-state strategy is useless because there will alwaybe be more evangelicals and other assorted homophobes than there are gays, lesbians and straight allies. We are always the minority, and our chances of beating them at the ballot box are nearly zero. We’ve been thrashed 30 times, and the number of states where we may get marriage equality (now 6) is 20 at max, but 10 more likely. Even getting to 10 will be difficult — it will be a few years before we get NY, NJ, MD or PA. Wyoming and North Carolina don’t have constitutional amendments, but do you really think we have any shot at getting equality there by legislative means?

    That being said, I am still very worried. This case is high risk, and I think that the arguments raised against this are valid. I can say that I totally conflicted, I’d say it I am 50/50 as to whether I think this is premature or not.

  • Bob Sees

    I agree- I am 50/50. However, I do think that Sotomayor will rule in our favor. She was nominated by one of the most liberal presidents in the past fifty years, gay rights issues notwithstanding.
    Kennedy will also rule in our favor, as he has for the past few lgbt rights cases. Same goes for the other “usual suspects” who rule in our favor. Just wish Sandra was still with us, she was truly a great woman & she’d stick up for us.=/
    Scalia is a homophobe and an activist judge, so screw him.
    I don’t know much about the other judges; TBQH I never really paid much attention to the Supreme Court unless it was something very intense or interesting happening.

    However, I will say this: THEY MUST USE LOVING V. VIRGINIA AS A LEGAL PRECEDENT. This WILL have the best chance of working by far, and will give the impression that history will look favorably upon the Judges if they rule for us on Marriage Equality. The past two cases have been in our favor, and the public opinion is much more in favor for marriage eqality than it was for interracial marriage.
    They’ve had a record of upholding gay rights as of late, as well, with Scalia disagreeing and 2-3 other judges effectivly going “lol yeah what he said”.

    It will likely end up being 5-4 in our favor… IF sotomayor supports us. Big IF there. It sounds so cheesey saying it, but it really does depend on her ruling.

  • Bob Sees

    Also, to add to my post, I found a VERY encouraging article about her.

    To quote:

    Ettelbrick said she met Sotomayor in about 1991 when they both served on then-New York Governor Mario Cuomo’s advisory committee on fighting bias.

    “Nobody wanted to talk to the queer person at that time,” said Ettelbrick, who represented Lambda Legal Defense and Education Fund. “She was the only one [on the advisory committee] who made a point to come over and introduce herself. She was totally interested [in gay civil rights issues] and supportive.”

    Now, I stand by what i said: It will be 5/4, in our favor.

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