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Immediately after the Proposition 8 ruling was handed down by the California Supreme Court, a newly formed group in Los Angeles filed a Federal law suit challenging that Proposition 8 violates the Federal Constitution. The two lawyers bringing the suit are politically charged and come from opposite ends of the political spectrum.
Still, the ACLU and Lambda Legal, two groups behind most of the successful state rulings are scared the suit will lead to a negative decision which will create a bad precedent for future groups hoping to litigate for Federal gay rights.
I believe that court chellenges should be brought despite a possibility of failure. I believe in the rule of law and trust that, eventually, even the perverted meaning of the equal protection clause handed down by the Supreme Court will protect LGBT Americans.
But I worry about this new law suit.
The first tip is that those on the front lines of the marriage fight are against the suit. If Lambda and the ACLU are worried, you need to take a second look at your tactic.
The second is that the current interpretation of the Federal Constitution only requires government – or an intervenor on behalf of the existing law – produce a rational basis for the discrimination against same-sex couples.
Formally explained, rational basis review requires the challenged legal distinction to, “bear a rational relationship to an independent and legitimate legislative end.” (from the U.S. Supreme Court in Romer v. Evans [1996]).
At certain times, courts have used this language to create a fairly useful test. In 1985, the Supreme Court found that the motive for distinguishing between two groups can’t just be prejudice or the desire to harm. If reasons that are obviously false are offered to justify the discrimination, the court should ignore them. As well, according to the Kansas Supreme Court, simple moral objections are not the same as a rational basis.
But the essence of rational basis is that an explanation, any explanation for the discrimination can be used to uphold the challenged law. Laws are presumed constitutional and the onus is on the Plaintiff to disprove every conceivable justification for the discriminatory regulation (according to the U.S. Supreme Court in FCC v. Beach Communications [1993]).
In Florida, this kind of reasoning permitted the Eleventh Circuit to conclude that in 2004 there was not sufficient evidence to disprove the claims that homosexuals are not as capable as heterosexuals at guiding children during their sexual development and homosexuals are less able to create stable home environments. This, after more than one generation of openly gay families in the United States and the state sanctioned existence of homosexual families in many other countries (including Israel, Canada and Norway).
In California, it could be said that the preservation of the word marriage as a religious and historical notion of a relationship between a man and a woman forms a rational basis for Proposition 8.
The current Supreme Court is very conservative. And the bar is set very low.
This is potentially a dangerous combination. Without significant state support and a brilliant public campaign leading up to the Supreme Court argument, the federal Prop 8 suit is doomed to failure.
Since the day Massachusetts legalized marriage equality, it has always been a matter of time until this became a constitutional issue of equal protection. The idea that it should be a state-level issue is fatuous in a the context of a federal republic with a highly mobile population. As I understand the lawsuit, it’s very narrowly focused on the inequality created within California now that an arbitrary distinction has been created between those gay couples who got married during its window of legality, and those who now cannot. By keeping the focus specific, the argument becomes stronger. Marriage rights are being won in court by litigators who choose their battles carefully. From the looks of things, this team knows what it’s doing. I think it’s time to stop cowering and let the fight go forward.
I dont have the credentials of jurisprudence to refute the idea that this could fail.
What I find offensive is the idea that Lambda & ACLU are trying to diminish support for their competitors by essentially saying that this is the last lawyer trick card to play whatsoever bar none, and if it fails, the war is lost forever.
Thats complete nonsense. There are a myriad of cases that can arise on various grounds that can still be presented, and thats before you even count legislative putchs.
I simply cannot take Lambdas and the ACLUs indictment of their competition seriously when they try to use scare tactics to erode support of another attorneys efforts to further civil rights when it its based on that set of lies just to keep the clout theyve become accustomed to, essentially by getting paid to fail and stall for as long as they please.
You all need to read what the lawsuit is about. It is about overturning prop 8 based on the assumption that it violates the U.S. Constitution. It is NOT I REPEAT NOT ruling on the constitutionality of gay marriages it is or would be ruling on the constitutionality of propsition 8 or ruling on the constitutionality of states being able to create constitutional amedmenments against a certain class of people (in this case gay people) therefore if the supreme court ruled that prop 8 is contitutional then states would allows these discriminatory amendements IT WOULD NOT outlaw the same sex marriages that exist today. If they said that prop 8 is unconstitutional then states would not be allowed to put these discriminations in their constitution. Therefore, states that could not get a legislature to pass a law to ban marriage in their state (where in most states the supreme court would overturn such bans) then SSM would be legal in those states
John, of course you are right. Fundamental rights are either fundamental rights or they are not. Still, I think it would be easier to argue that we are suffering in tangible ways if we are talking about states that afford no rights at all to gay couples, such as Michigan or Florida, as a result of their constitutional amendments. I wonder if Olsen and Boies have some particular reason in filing their suit in California, other than that they are there? Perhaps they think they have a better chance getting a sympathetic hearing in California than in other federal jurisdictions. In any case, the real victory would be to have a resounding decision from the US Supreme Court that equal protection under the law must be accorded to all of us, and that presumably would invalidate the state constitutional amendments such as those adopted in Michigan and Florida and many other states. Or am I being too hopeful here?
Jay, if the voters had denied the right to marry to, say, Jews, would the CA Supreme Court, much less the U. S. Supreme Court, have characterized that as carving out a narrow exception? Basically, people have fundamental rights or they don’t.
I think a federal suit at this time is a good idea, but I have some doubts about a suit over Prop 8. The problem with appealing Prop 8 is that, according to the California Supreme Court, Prop 8 is to be construed very narrowly. The only thing it deprives us of is the name marriage. (While we know that the name is significant, I doubt that members of the US Supreme Court will be convinced.) I think what needs to be challenged are the state constitutional amendments that forbid both marriage and domestic partnerships or civil unions (as in Michigan and Florida). And of course a suit challenging the constitutionality of DOMA, which deprives us of the substantial federal rights even in states that do permit us to marry. Ultimately, the only way we will be able to achieve equality in the country at large will be through a broad US Supreme Court ruling. I think the Court will be ready sooner than many people think, and I hope that Lambda, Glad, and the ACLU are planning something along these lines.
And let me add an additional comment. Five of the six justices who were in the majority on Romer and Lawrence are still on the court, including Justice Kennedy, who wrote both opinions. We know how Justices Scalia and Thomas are likely to vote, but we do NOT know to a certainty how Justice Alito is likely to vote and the Chief Justice is a complete cipher on this issue. I think at worst, we’d lose a narrow decision (4-5); we might win a narrow one (5-4), or we could even get a more solid win (6-3). I say go for it (and fight to beat Prop 8 on the ballot in California next year).
Emma, elsewhere on this site, there is an article and thread of comments entitled “LGBT groups urge dropping federal gay marriage case”. I have given my thoughts at some length there and will not repeat myself, but you and anyone else who is reading your piece is welcome to read what I wrote – about the 78th comment or thereabouts.
Basically, I think bringing this suit at this time is a good idea (when have we ever had the luxury of picking the time to fight our fights?) and besides, what have we got to lose?
I would not pay much mind to the ACLU and Lambda Legal. Their small positive outcomes for us have not been getting the job done. The Olsen-Boies team have the right solution at the right time. Further, I disagree on the test. While “strict scrutiny” is not applicable, our case cannot be satisfied just by “rational basis” (although we would win that case, because there is no rational basis). It’s the stricter “rational-plus” test. And we win on that test even more easily.
The lawsuit sure seems like a bad idea for now. The Supreme Court as you say is very conservative. Also the CA Prop8 ruling said “Proposition 8 reasonably must be interpreted in a limited fashion as eliminating only the right of same-sex couples to equal access to the designation of marriage, and as not otherwise affecting the constitutional right of those couples to establish an officially recognized family relationship.” So, if one can still form a family in CA. Plus there are the 18000. Our feelings got hurt, but depending on how you look at it, did LGBT and their families really lose that one?
This case will fail, and fail badly
As it is intended to
It is a right-wing plot to set us back and energize the Republicans, I hope you all realize that
win , lose , draw – its a multi prong approach and a lawsuit whose time has come – if anything we should be putting pressure on The President to REPEAL DOMA immediately this is more pressing in this battle , than the DADT policy. imho. I say good on the attorneys , low bar or not – we’ll see them in court. Full court press, multi prong approach and lets continue our brilliant education campaign. A win will also give some guidance to this crazy patchwork of states.
DOMA needs to be repealed yesterday ! and good on these lawyers for seeing the very plain constitutional injustices here. So let lamda and the ACLU worry all they want – the fight goes on and will go on , on every social front, in every state – look at history somehow people of color overcame bad court precident , we can do this yes we can !
I can’t find any error in your legal analysis, although Id assume Bois and Olsen would say it may be incomplete.
However, if this case were to lose, any number of others could emerge to effect a win.
Furthermore, it presents a scenario where we could actually win by losing. Were the federal government to return a decision re-affirming the denigration of gblt people at the federal level, Im certain that that a furor would follow that would corner the government into facing a new generation of truly pissed off “gays” that its only beginning to see.
Finally, I couldnt be happier that there is finally litigation that isnt beholden to the opinions of any of the groups you mentioned.
ACLU, LL, etc. are just blood-sucking lawyers themselves that are grousing that some independents are stealing their thunder, wresting the reins away from the clout theyve become used to, and worst of all: threatening to speed up the clock and lose all the money that could be made by dragging this out for another three decades.
I hate this idea because it is way too early. I think we need to start getting rid of the marriage amendments in the states where it is possible and then take care of the rest of the “impossible” states with a challenge like this. The federal side will go with DOMA, once that is gone our marriages can be recognized by the Federal Government. Furthermore, DOMA’s repeal will allow people who get married (in states that allow it) to have their marriage recognized in states that don’t (full faith clause).
The lawsuit has a better chance than us getting same sex marriage in some states. Even if we do get same sex marriage in all 50 states, there are still 1138 rights that will not exist until we get this through at the Federal level. Why should those of us who have been waiting for a long time now wait and wait and wait? It is time for action to take place that will benefit all and not just some. My gratitude goes out to these attorneys and their clients for taking this giant step forward.