David's constitutional equal-protection analysis is a respected one with a long pedigree in the Court's cases and in gay-rights legal theory. My aim is not to comment on the merits of that argument, but to make a somewhat different observation: for all the heroic feats of the Warren era and a few other decisions here and there, the federal courts have not been white knights riding in to save beleaguered minorities. As David knows well, we cannot rely on courts alone, or even on courts primarily, as a way to advance policies (or rights, if you prefer) resisted by popular majorities.
The Olson-Boies litigation is an act of faith in the heroic myth of the courts. It is faith-based litigation. Veteran court observers and litigators in gay-rights circles knew better than to act on this faith right now, which is one big reason they initially opposed the suit (another big reason is that they did not want to lose control), although they certainly share the commitment to the constitutional arguments.
Solely as a tactic to advance the cause of gay marriage, the Prop 8 litigation has offered two possible gifts. First, it might actually result in a constitutional win, giving us nationwide gay marriage decades ahead of legislative action. I doubt this will happen, even more now than when it was filed last year, for reasons I outlined yesterday.
Second, the process of litigation itself, win or lose, might educate the public about gay marriage. Through lawyers' arguments, brilliant briefs, landmark published decisions, and the live testimony of witnesses on both sides -- the sacraments and holy texts of lawyers -- the public might come to see how compelling the case for SSM is, and how thin or even hateful the opposition is. That has been the theory.
Now the theory meets fact. Other than those with committed views on SSM, nobody is paying attention to this trial. True, the pro-SSM and anti-SSM blogs are full of "coverage," which consists mostly (David excepted) of hooray- for-our-side commentary. Yesterday, while we reveled in the latest devastating analytical blows to Prop 8, its supporters were deriding the trial as a "desperate" attack on religion, which was halted by an "impenetrable roadblock" from their expert witness.
The public is oblivious to all of this. The Supreme Court precluded any possibility of a wider educative impact by stopping even limited broadcast. Now all we have is a transcript, in all its black-and-white glory. There has been no coverage of the trial on television and very little of it in major newspapers. Yesterday, the New York Times ran a three-paragraph story in the lower right-hand corner of page A13. That's been about it. Meanwhile, there's Haiti. There's healthcare. There's the ongoing meltdown of the Obama administration and the Democratic Congress. But even if these things weren't happening, something else would be sucking the oxygen out of the image-less Prop 8 trial.
At this point, the best outcome for SSM in the Prop 8 litigation might well be a loss in the Ninth Circuit. This would limit the harmful precedential effect of the case, allowing the Supreme Court to defer consideration of the constitutional claims so ably defended by David and others.
We don't need more faith-based litigation. We need to do the hard political work of persuading people that they have nothing to fear from the happiness and security of gay families. That is being done in only a very limited and indirect way in the Prop 8 trial, at potentially high cost. We need much more focus on democratic processes. Fortunately, that work has begun and is showing signs of success, both in polls and in legislatures.
10 Comments for “Faith-Based Litigation”
posted by BobN on
First off, I’ll repeat that I have grave misgivings over this suit and opposed it.
I take your point about pursuing our rights in venues other than the courts, BUT in California, we have convinced the Legislature (which TWICE passes SSM laws), we have convinced the (lily-livered) Executive (who might have avoided a lot of this back-and-forth by signing one of the aforementioned bills from the Legislature), and we have convinced the state Judiciary.
I am by nature a pessimist but maybe, just maybe, this trial will result in a small decision. Small compared to a decision about SSM. Maybe the SCOTUS will go the route of Romer and just overturn Prop 8, restoring the civil right in California and not addressing any other issue.
posted by Tom on
Boies and Olson are experienced, hard-eyed lawyers, with, particularly in Olson’s case, a lot of experience with SCOTUS. Gibson, Dunn & Thatcher is not a dewey-eyed liberal-leaning public interest firm. Gibson Dunn is consistently ranked, as was the law firm where I was a partner before I retired, as one of the top ten litigation firms in the nation. Boies and Olson, and the folks who run law firms at that level, are not fools and do not tilt at windmills. When Boies, Olson and Gibson Dunn took on this case, they did so because they believed that the case had a reasonable chance of success. Boies and the other lawyers handling the case at the trial level destroyed the Proposition 8 witnesses. It was, considering the thin soup that supports the "rational basis" of Proposition 8, inevitable. That is not say that we’ve won, though, because knocking out the defense does not make our case, particularly the case for "intermediate scrutiny" or "strict" scrutiny. The climb from "rational basis" to either "intermediate scrutiny" or "strict scrutiny" is a long, hard climb, given the history of both at SCOTUS and the current composition of the Court, and, reading the transcripts from start to finish, I think we’ve got a 50-50 chance at best of obtaining that status. Judge Walker’s decision, when it comes, will probably strike down Proposition 8, but be limited to the peculiar facts and circumstances of California, which has an unusual "direct democracy" constitutional system. An exchange in the California state case between the California Supreme Court Justices and Ken Starr illustrated the problem. Under questioning, Starr, who is as good an appellate advocate as I know, admitted under questioning that the California constitution would permit the voters of California, through an initiative, to repeal the California equivalent of the First Amendment as it applied to religious freedom, but as Starr was quick to point out, the repeal would not stand up under federal constitutional scrutiny. It is precisely this constitutional question — the question of whether the voters of California, through the initiative process, can repeal a "fundamental right" under the California constitution, and do so without violating the federal Constitution — that underlies the Perry litigation. It is quite likely, given the history of judges to rule as narrowly as possible, that Judge Walker will rule that Proposition 8, permitted under the California constitution, does not stand up under federal constitutional scrutiny. With the horrid defense presented at trial, Judge Walker will be in a position, if he chooses, to apply the "rational basis" test and reach that decision. If this is what happens, Judge Walker’s ruling would be very limited in scope and application. It would apply only to California, be limited to the California’s peculiar constitution, and have no precedent value beyond California. At that point, the Proposition 8 defenders have to make a choice about appeal. The risks for them are high, because an appeal could set precedent for the seven states in the 9th Circuit, most particularly Oregon and Washington, where challenges to those states’ bans on SSM would seem ripe. The Proposition 8 defenders would be prudent to think twice about expanding an unfavorable ruling. Don’t be surprised if the case is not appealed. If it is appealed, the appeal is almost certain to be heard by the 9th Circuit. The 9th Circuit could enter a decision, one way or the other, in a way that limited application to California and did not set precedent for the 9th Circuit as a whole, or it could issue a broader ruling. What is true at the 9th Circuit is also true at SCOTUS, with the added twist that SCOTUS has absolute control over the cases it puts on its docket and might refuse certiorari. The chances of Perry becoming either Brown or Plessy — or Bowers or Lawrence, for that matter — are not high, whichever way Judge Walker rules in a few weeks or months. In my view, the best outcome for this case would be a narrow ruling by Judge Walker, affirmed by the 9th Circuit, with certiorari refused by SCOTUS. The narrow path would restore marriage in California, add a nail to the coffin of the anti-marriage folks in other states, and delay a SCOTUS decision until the broader question is "ripe for review". Meanwhile, as Dale points out, we must fight at the political level. In particularly, now that constitutional conservatives are beginning to come out of the closet on SSM, it is time for conservative gays and lesbians to get to work within the Republican Party.
DC: I have a lot of respect for both Boies and Olson as smart and extremely capable lawyers. But neither man is experienced in gay-rights litigation in general or SSM in particular. Neither has any special expertise in the federal courts’ decisions in this area. I may be wrong but I think this is the first time either has even litigated a gay-rights case. The people who do specialize in this area almost uniformly opposed this litigation at the outset and support it only now because they have no choice in the matter. It’s happening, so they have to try to make the best of it.
I think the scenario you suggest in which Walker issues a good-for-this-ride-only ticket to Prop 8 opponents is very unlikely, in part because it would look so nakedly unprincipled and in part because it would represent a big confusion of federal and state constitutional rights. Under this hypothetical California-only decision, the federal courts would have to say that California’s voters may not ban gay marriage but that the voters of every other state may do so, as long as they get the timing right, i.e., before their state supreme courts intervene. On what basis would the federal courts thread that needle? They would have to say that California’s voters may not decide, against their own state courts, the contents of state constitutional law as a matter of federal constitutional law — on which there is no independent basis for a decision. That’s different from the proposition Ken Starr advanced at oral argument in the state supreme court earlier this year: that the federal constitution would not permit the state’s voters to repeal all free speech rights. Of course, they could not repeal rights guaranteed by the U.S. Constitution, but nothing would prevent them from repealing whatever free-speech rights their own state constitutions provide. The analogous holding in the Prop 8 litigation would be that California’s voters could not prohibit same-sex marriage because the federal constitution guarantees a fundamental right to SSM or at least prevents state discrimination against same-sex couples. But of course that would get us right back where we began: a federal constitutional right (or non-discrimination principle) that would invalidate the marriage laws of 45 states.
That’s why, if Walker holds Prop 8 unconstitutional, and if the Ninth Circuit upholds that decision, it will be very hard to contain it. And that is why, in my view, there would be at least four justices who would vote to grant cert.
posted by Jorge on
Hmm…
I like the idea of attacking “rational basis” arguments in favor of Prop 8.
Nope. I still don’t care.
posted by Regan DuCasse on
Olsen is taking on a resemblance to Atticus Finch more and more.
Anyone familiar with that story, Finch had a Sysiphian task ahead of him.
He didn’t want it, he knew it would be impossible, but he put his best defense before the court, and the case got widespread attention throughout the county it was tried in.
And three children, including his own two, were able to get a profound education in what an open court could reveal.
Regardless of the material those children were exposed to, much to the stern criticism of much of Finch’s family and neighborhood, HE knew his children deserved to know what people were really like, what they were capable of and most of all, how to challenge them in the ONLY place where evidence had to be presented.
I think this case is just as important in educating the public on the process of disseminating evidence with regard to a hated minority, how that hate is fomented and used as a political tool for discrimination and how the integrity and intentions of the Constitution itself will be damaged.
I recommend you read “To Kill A Mockingbird” and you’ll understand what I mean.
Finch was given the case because he had the integrity to carry it to it’s full extent.
His closing argument carries so many points that are at issue in defending gays and lesbians on ANY level.
Gays and lesbians are at the very least, as contentious a minority as blacks. Their human value is called into question over something anyone can do freely. Literally, ANYONE.
The links I have for Brown vs. Brd of Ed. and other landmark decisions that required the integration of otherwise excluded minorities, you shouldn’t be surprised so much at the minority aspect of the issues.
But at the similarities in the DEFENSE of segregation.
We are witnessing all over again, the defense of segregating gays and lesbians from marriage, from the military, from their families of origin, from places of worship and faith communities, segregation from school and whatever profession of choice.
THAT is the underpinning of this case. Segregation.
And since I wasn’t born, during Brwn. vs. Brd of Ed.
Was engaged as a precocious child with my family’s civil rights activities to witness the signing of the Civil Rights Act in 64 and the Hardwick case regarding resonable privacy and sodomy and so on.
I REALLY wanted to see this for myself.
I’m used to reading transcripts and at least those are available.
But it’s not the same and we all know that.
The affect on gay lives is at stake, and worthy of an interested audience. Because when it’s all said and done, segregationists ARE all of a piece, even if their targets are not.
posted by Tom on
DC: I have a lot of respect for both Boies and Olson as smart and extremely capable lawyers. But neither man is experienced in gay-rights litigation in general or SSM in particular. Neither has any special expertise in the federal courts’ decisions in this area. I may be wrong but I think this is the first time either has even litigated a gay-rights case. The people who do specialize in this area almost uniformly opposed this litigation at the outset and support it only now because they have no choice in the matter. It’s happening, so they have to try to make the best of it.
The specialists in the SSM arena opposed the litigation because it was a roll of the dice, potentially blowing a carefully plotted state-by-state strategy out of the water with an adverse SCOTUS ruling. That does not speak to the skill of the lawyers involved in this case, or to the potential for success. It speaks to strategy.
Obviously, it would have been safer to wait until 2025 or later to bring this case, when the political map on SSM would approximate that presented in Loving. I think, as many do, that Perry may well be premature, particularly since the Court now has at least two — Justice Scalia and Justice Thomas — hell-bent on overturning a generation’s worth of decisions. Nonetheless, Perry has a reasonably chance of success should SCOTUS grant cert.
My view is that the case would have the greatest likelihood of success in SCOTUS if the initial decision were as narrow as possible, as limited as possible.
DC: I think the scenario you suggest in which Walker issues a good-for-this-ride-only ticket to Prop 8 opponents is very unlikely, in part because it would look so nakedly unprincipled and in part because it would represent a big confusion of federal and state constitutional rights. Under this hypothetical California-only decision, the federal courts would have to say that California’s voters may not ban gay marriage but that the voters of every other state may do so, as long as they get the timing right, i.e., before their state supreme courts intervene. On what basis would the federal courts thread that needle? They would have to say that California’s voters may not decide, against their own state courts, the contents of state constitutional law as a matter of federal constitutional law — on which there is no independent basis for a decision. That’s different from the proposition Ken Starr advanced at oral argument in the state supreme court earlier this year: that the federal constitution would not permit the state’s voters to repeal all free speech rights. Of course, they could not repeal rights guaranteed by the U.S. Constitution, but nothing would prevent them from repealing whatever free-speech rights their own state constitutions provide. The analogous holding in the Prop 8 litigation would be that California’s voters could not prohibit same-sex marriage because the federal constitution guarantees a fundamental right to SSM or at least prevents state discrimination against same-sex couples. But of course that would get us right back where we began: a federal constitutional right (or non-discrimination principle) that would invalidate the marriage laws of 45 states.
In a nutshell, the basis of a narrow decision by Walker would be this: The Supreme Court of California declared marriage equality a “fundamental right” under the California Constitution. Proposition 8 repealed that right, as to some granted that right but not all granted that right, by voter initiative. The California Supreme Court upheld the ability of California voters to repeal the “fundamental right” under the California constitution. A state constitutional scheme that allows voters to remove a state-granted âfundamental rightâ from some but not all of the citizens granted the right is offensive to the federal constitution’s guarantee of equal protection.
I don’t know where you come down on this, but I believe that the California Supreme Court’s decision was technically correct under the California Constitution. Under California’s constitution, Ken Starr’s appellate argument got it right. Under the peculiar language of the California constitution, California voters have broader voter initiative powers than the powers granted by any other state constitution, and the voters have the power, under the provisions of California’s constitution as interpreted by the California Supreme Court, to repeal Article I, Section 4 of the California constitution, which guarantees religious freedom to all Californians, as to some religious adherents but not all religious adherents.
As Starr quickly noted, and as we both pointed out in our comments, that would not fly under the federal constitution, because it would offend the First Amendment of the federal constitution. However, I suggest to you that it is not necessary, for equal protection analysis, for a federal âfundamental rightâ to be involved in order for equal protection to be triggered.
The narrowest federal question — and the question on which Judge Walker could rule if he seeks a narrow decision — is whether a constitution system that permits “fundamental rights” under a state constitution, once established (in the case of marriage, by decision of the California Supreme Court), to be abrogated as to some but not all citizens granted the right under the state constitution, meets the requirements of the Equal Protection clause.
The question of whether SSM is a “fundamental right” under the federal constitution need not be decided in this scenario, because the equal protection question would seem, to me at least, to exist whether or not whether a state can, without offending the federal guarantee of equal protection, which binds the states as well as the federal government, remove a “fundamental right” granted by the state constitution.
Note that the federal question is unique in the recent battle over SSM.
Since 2000, the voters in a large number of states have preemptively amended state constitutions to abrogate marriage rights as to some, but not all, citizens arguably entitled to equal protection under the federal constitution and/or the state constitution in question (the broader constitutional question), but in none of those states did the action follow a declaration by the Supreme Court of the state that marriage equality was a âfundamental rightâ. A few months ago, Maine voters overturned the action of the Maine legislative, but that action involved legislation rather than a right under the state constitution. The question of âfundamental rightâ under a state constitution was arguably involved in the Hawaii and Alaska cases, but the amendments in those states were not, to my knowledge, challenged in the federal courts. The California case is distinguishable from Baker (the 1970’s Minnesota case which SCOTUS dismissed for âlack of a substantial federal questionâ) because Baker was a straight-up appeal of a state Supreme Court decision that held that the a state statute did not offend the federal constitution.
In any event, that is the basis on which I believe Judge Walker could rule without opening the question of whether or not SSM is a âfundamental rightâ under the federal constitution. You obviously think that is a stretch at best, or perhaps complete nonsense, and maybe you are right.
posted by North Dallas Thirty on
The narrowest federal question — and the question on which Judge Walker could rule if he seeks a narrow decision — is whether a constitution system that permits “fundamental rights” under a state constitution, once established (in the case of marriage, by decision of the California Supreme Court), to be abrogated as to some but not all citizens granted the right under the state constitution, meets the requirements of the Equal Protection clause.
Unfortunately for that argument, the California Supreme Court is not the ultimate authority on what is a “fundamental right”. The voters, by their ability to amend their constitution, are. The California Constitution nowhere states that marriage to the sexual partners of your choice is a “fundamental right”; that was created by the justices.
Furthermore, since the justices only allowed a certain subset of individuals to marry the sexual partners of their choice, marriage “rights” are abrogated to some, but not all citizens already. Children are not allowed to marry, despite being citizens guaranteed equal protection. People who are too closely related are not allowed to marry, despite being citizens guaranteed equal protection. Those who already are married to others are not allowed to marry, despite being citizens guaranteed equal protection. It is clear by that fact that marriage is not a “fundamental civil right” of all citizens that cannot be abrogated and restricted by the voters.
Finally, the point is easily made that amendments are reversible. The fact that California’s constitution is particularly easy to amend works in both directions. The fact that gay and lesbian lawyers who haven’t thought this through are arguing that California’s constitution is too easy to amend must also consider the flip side — since it is easy to amend, it is not difficult to reverse the alleged “discrimination”.
posted by Amicus on
I’m all for realistic assessment.
No problem with suggesting that we ought to focus on the long-term effort of how best to sway the electorate.
I do have a problem with judicial pessimism.
Advocates, instead, should be trying to create the circumstances in which a favorable ruling can be favorably received.
We can do this by raising FUD of our own (many ways on the table).
Also, we can do this by reminding the Court of its most prominent failings, rehearsing the list of “justifiable distinctions”, which turned out to be the Court’s greatest embarrassments.
You know the cases better than we do, Dale. I only know the famous ones, like the Cherokee trail of tears – probably not the same legal framework, exactly, but somehow the court found a ‘justifiable distinction’ for that grand error. Dred Scott is, of course, a remarkable piece of so-called “conservative jurisprudence” that just looks like a horror to us today.
I don’t think Kennedy, who may have a pragmatist’s streak similar to Sandra Day, a willingness to just decide ‘the case that is before you’, might hesitate to sign onto the worst possible outcome.
It may be a while before the SCOTUS takes up the case. That might be enough time to continue to repeat “trail of tears” enough to make an impression…
posted by Amicus on
“I don’t think Kennedy” s/b “It’s possible that Kennedy”
posted by Amicus on
Other examples, catch-phrases that ‘raise the bar’:
How “highest court can apply the lowest standard to the finest institution” is beyond me…
posted by Amicus on
Adding:
Here’s another understanding, of a sort, that we might consider propagating.
After hearing all, a Justice goes into his chambers, confused. He errs on the side of no-change.
This is lazy “conservatism”.
Rather, a Justice should carefully weigh the grave harms of potentially a caustic second-class citizenship, a view felt by many gay and lesbians and their sympathizers, and the power of the majority to self-satisfy.
Reserving ultimate judgment, such a Justice might choose to let social change inch forward.
Put another way, it is easier to overrule yourself later, especially if you’ve left an escape-hatch to do so, if there is plain evidence that homosex is ruining the fabric of society than to overrule yourself if you said there is no merit to homosex and marriage for homosexuals. Huamns do respond to harms, we’re not helpless, not destined for decay and degeneracy in the face of change.
I’m in a hurry, so that might not be my best foot forward on this idea, but there it is, fresh from the shower. 🙂