Subscribe to Breaking NewsRuby-Sachs: To Litigate Or Not To Litigate?
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.
Though I agree that the time isn’t right for a federal suit, I have to correct a portion of Ms. Ruby-Sachs’ argument. Based on Lawrence v. Texas, the Court would have to use a level of scrutiny higher than rational basis – most likley intermediate review. This level requires an “important government interest” which is accomplished through “substantially related” means.
Please. I’ll translate for everyone. “The ACLU and Lamda Legal are scared the suit will lead to a negative decision”. Translation: Who do these two think they are? They are not part of OUR CLUB, and there will be no successful activism that is not sanctioned BY US. As someone who has been screwed by his own people while fighting discrimination I am here to tell you. These people have no interest in anybody’s civil rights. It’s all about careers and advancement in the legal community. Yes, I am talking about the ACLU and LAMDA LEGAL. Two of the most worthless organizations on the planet. Don’t give another red cent to them! I read time and time again the same statement by people in answer to articles like these, that when they were down and out, nobody came to help them. Why is there no reporting on this? Why doesn’t anybody tell the truth. Oh, but I’m keeping notes. And when my case in done with, I will publish the whole sordid mess. It should be quite a read!
When Obama started his run for President many people couldn’t believe a black man could be elected President. It was hard for him to get broad support initially because of the fear he would lose.
Ted Olson and David Boise face a similar concern from the Gay Community that have been working slowly state by state to win Same Sex Marriage civil rights. If they lose the Gay Civil Rights movement would be set back a decade.
But their is a good possibility that they could win a 5/4 Supreme Court Decision it they get Justices Kennedy and Stevens, Breyer, Ginsburg and Sotomayor.
Emma, I think you are wrong on this. Olson is sincere. He advances the strongest argument most eloquently I have yet heard. Far better than the pathetic campaign ‘our’ groups came up with. Also the more straight allies are out front with us on this, the better. Besides, who can accuse Ted Olson of being a ‘left wing’ activist. The guy is as conservative as they come. Olson and Boies are two of the best legal minds in the country, with decades of SCOTUS experience — far more and much more varied experience than any of ‘our’ groups. I’d frankly rather have them as my legal team than the ACLU or Lambda (as wonderful as they are). Lastly, consider Olson would have been more than a little involved in the selection of Roberts. I have a feeling that they are of like mind on these issues.
I wish the lawsuit success! The groups that oppose it are simply being envious.
At this point in time I strongly suggest that all Gay/Lesbian residents of Cali leave the great sham state and re-locate to one of the few gay friendly states out there. let’s see how long Arnie’s fascist kingdom of Cali will stand once a massive brain drain gets underway. Couple that with the inevitable BOYCOTT of Cali and we can bring that puke in the state house along with all of his ultra right wing supporters, right to his F*ckin’ knees!! Peace out.
Most of us have waited for equal rights for far too long now. We should not have to wait another decade or more.
Hmmm…isn’t this interesting. Let’s see here, this ultra mysterious human rights group just pops into existence literally overnight and appears to be headed by an extreme right wing think tank who’s member was/is a lawyer employed by the Bush administration. Yup, this shurely sounds legit to me. So what happens when this case fails at the supreme court level(which it will)? I’ll tell you all what will happen, all the states that don’t allow direct petition drives to go on the ballot(MA, VT, NH, CT, IA, ect,ect,ect)will now be REQUIRED by the USSC to do so. In other words bye,bye Marriage Equality. I FULLY AND I MEAN FULLLLLLLY do NOT recommend us supporting this sham lawsuit!! The writing on the wall cannot be any more plain folks. Support this right wing farce and you’ll be signing the death warrant for what few states have Marriage Equality!! Peace out.
Jay, the suit is filed in the District Court in San Francisco because the plaintiffs live in CA (and I believe in the Bay Area) and because they are specifically challenging Prop 8. There’s nothing mysterious about it and if they were forum shopping, they misjudged. The case has been assigned to Judge Vaughn Walker, a conservative Republican.
A strict interpretation of the 14th Amendment alone should be enough to find in favor of marriage equality. With the additional precedents out of Loving v. Virginia and Brown v. Board of Education, there should be absolutely no question as to which direction the Supreme Court *should* go, and unamimously, were it to take up the case.
Unfortunately, since Scalia can’t separate his religion from his decisions, and since Thomas simply mimics Scalia, we are assured of two votes against marriage equality, no matter what the 14th Amendment says.
The whole question is probably moot anyway, as I doubt the current court will take up the issue unless there is enough popular momentum, or some incident, that requires it to do so.