The last two gay rights decisions on the court have gone our way. We still have four pro-gay justices, and I see no reason to believe that Sotomayor won’t vote similarly to Souter. That’s a potential five votes.

Why not now?

Frankly, I wouldn’t mind seeing a second federal lawsuit that is focused on the language of the Strauss decision and whether Prop 8 violated the 14th Amendment. That would cover both the broad sweep and narrow focus approaches.

When Bowers v. Hardwick was decided, one state had an anti-discrimination law: Wisconsin. When Lawrence v. Texas was decided, approximately 20 states had anti-discrimination laws.

Why does this matter? Because anti-discrimination laws pave the way to more people coming out. When more people come out, straight people who get to know them vote for us in larger numbers.

I’m not a lawyer, but I did read the Bowers decision. (I also got arrested protesting on the steps of the Supreme Court during the March on Washington in ‘87. SEE! I wasn’t always this “moderate.” ) When I read the majority opinion, it was so obviously full of the kind of mental gymnastics that people engage in when they aren’t grounding their opinions in any real-world knowledge of gay people. Contrast that with the MA decision legalizing marriage equality; those judges (even in the dissent, IMO) obviously understood gay couples and their families.

We really need to shore up our support of ENDA. People are underestimating the power of that proposed law and what it will do for the gay people in the 30 states that currently do not have an anti-discrimination law.

You’ve just described 3 to 5 years worth of work (especially if you’re including Rhode Island in that list). Why can’t we hold back on a federalization movement for 3-5 years while we gain this ground in the states?! (Go, Eastern Seaboard Strategy! Maryland to Maine!)

If we’re lucky, Obama may get another appointment in that time, bolstering our chances. Also, if Obama follows through on his promises to further ENDA and end DADT (stop laughing, out there!), then that will set the table nicely for a case moving to the Supreme Court.

What’s that saying about “fools rush in…”?

I wish we could take *half* of this passion and energy and aim it toward passing ENDA. I firmly believe that will set the stage nicely to enable a federal marriage equality movement. It’s really hard to imagine states accepting marriage equality that are still firing gay people and kicking them out of their homes. Let’s create a stable environment in which we can more safely come out in 30 of our states. We don’t have that, yet, and it’s a shame.

Then, we can take the other half of the passion and energy and use it to win back California (and maybe convince folks to make it harder to amend the constitution there).

I support everyone’s intentions, but bringing a case to the Supreme Court is very bad strategy right now. There is sooo much other meaningful, related, and “table setting” work we could be doing right now.

I also want to say, I do not question Ted Olson’s good faith, motives, or good judgment. I know the man is a conservative Republican, but I also know he’s a partner in one of this state’s largest and most prestigious law firms and I doubt very seriously that he would engage in conduct which, as you must know if you are a member of the Bar in California, would cross way over the professional misconduct line. He represents these clients because he believes he can do so in good faith and with proper zeal and I, for one, am glad to see him on the right side of an issue for a change.

I want to dispense with comparisons to the Bowers example first. That case was decided nearly a quarter-century ago when the entire country was far different, far less tolerant, than it is today. It was presented to a Court which, I submit, was far more conservative than even today’s Court is. Burger, Rehnquist, Byron White – three strong conservatives; Powell was right of center on “social” issues, certainly on the question of the right of a state to enact a prohibition against “sodomy” (itself almost an archaic term today); Sandra Day O’Connor had yet to move as markedly to the center as she would do in her later career. Indeed, had Justice Powell had his “second thoughts” before concurring in the result rather than after, sodomy laws in this country might have been struck down 16 years earlier than they were. At best, the opinion reflected a divided and shaky majority with a majority opinion and two concurring opinions. I simply don’t see how the legal world or the real world of 2009 are comparable to the mid-80s.

Romer, if I remember correctly, did not address Bowers because no one asked the Court to address Bowers. I happen to believe that was a mistake, for the make-up of the Court had changed dramatically in the decade following Bowers (Romer was decided in 1996). Burger, White, and Powell had left the Court and Justice O’Connor had become a “swing” vote on many issues. (She certainly swung in this instance, moving from the 5-vote (wobbly) majority in Bowers to the 6-vote majority in Romer.) Yet possibly because “our side” was hesitant to risk another adverse opinion, they passed up a direct challenge to Bowers, leaving that case to stand as good law for another 6 years. You never win the fight you’re afraid to fight is the lesson I take from that.

In 2003, the Court in Lawrence struck down a Texas sodomy statute on both due process and equal protection grounds. Justice Kennedy, a Republican and Republican-appointee who had also authored the majority opinion in Romer, wrote for himself and four of his colleagues; Justice O’Connor concurred in the result, limiting her rationale to equal protection. Counting heads, that makes a 6-3 majority on the side of Right. It is particularly significant to my way of thinking that the majority opinion rested not only on equal protection but on due process. Quoting from Justice Kennedy’s opinion (slip op. at 6):

[sodomy statutes] do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. (emphasis added)

What is a prohibition against same-sex marriage if it is not an attempt to define or set boundaries to a relationship which injures no one and abuses no protected institution?

And farther along in the opinion, Justice Kennedy cites Planned Parenthood of Southern PA v. Casey as confirming “that our laws and tradition afford constitutional protection to personal decisions relating to marriage, etc.”, going on to point out that “Persons in a homosexual relationship may seek autonomy for these purposes just as heterosexual persons do.” (Slip op. at 13; emphasis added) See also his reasoning as to why Lawrence had to be decided on due process as well as equal protection grounds. (slip op. at 14)

Now, I acknowledge that Justice Kennedy wrote, in concluding his opinion, that the case before the Court did not “involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” (slip. op. at 18) In the context of his larger opinion, though, that appears to me to be a simple statement of fact and nothing more. He was not saying that that question could not be presented subsequently and that the Court could not hold that the due process and equal protection clauses of the U. S. Constitution did in fact protect the right of same-sex couples to be married, he simply recited the fact – the question was not presented to the Court in Lawrence. Personally, I set more store by his next paragraph, the penultimate in the opinion:

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (id.)

Those do not strike me as the words of a Justice whose mind and heart are frozen in time or who is unlikely to entertain a petition to strike down prohibitions against same-sex marriage which, after all “serve only to oppress.”

Finally, what do we have to lose? We can still pursue repeal of Prop 8 at the ballot box and should. If the Court holds that there is no Federal due process or equal protection right to same-sex marriage, states can still provide for it in their statutes. And even an adverse opinion isn’t forever, it’s just for as long as the make-up of the Court which handed it down remains the same. This isn’t our only bite at the apple; it’s just one of many firsts.

Federal Courts and the SCOTUS do not have to find that marriage equality is an inalienable right or that gays and lesbians are part of a suspect class; as far as citizens of California are concerned, those issues were established in our favor by In re: Marriage Cases, and were repeated and confirmed in Tuesday’s opinion. As a result, the substantive law which the Federal Courts will apply in their equal protection and due process analysis is whether the constitution and laws of California treat all of its citizens equally, or whether they are applied discriminately. The CASC made this a bit easier for the Federal Courts by holding Prop 8 “as carving out an exception to the preexisting scope of the privacy and due process clauses of the California Constitution”. Seems to me these folks chose to excercise a slavish devotion to the proposition system, while also intentionally providing grounds for a federal challenge.

As for the complaint, if you had taken the time to look at it closely you would discover that it was filed May 22 – the Friday before the opinion was issued on May 26. The lawyers filing the action were completely unaware of how the CASC would rule, or the rationale they would use. Rather, it is clear that it was filed immediately after the CASC announed that it would issue its ruling -doubtlessly so that this would be the senior case (and Mssrs. Olson and Boies would be lead counsel) in the likley event that other cases are filed and ordered consolidated.

Bottom line, since it is clear that you are not a lawyer, I would suggest you take some ConLaw and Choice of Law classes before pontificating.