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Loading ...Corvino: Hands Up for Marriage Equality
President Truman’s quip about wanting a one-handed economist—so that he would cease being told, “On the one hand…on the other hand…”—pretty well sums up my reaction to the news that Ted Olson and David Boies are spearheading a federal lawsuit challenging California’s Prop. 8.
Olson and Boies are two of the most prominent constitutional lawyers in the country—as evidenced by the fact that they represented George W. Bush and Al Gore, respectively, before the U.S. Supreme Court in “Bush v. Gore,” which decided the 2000 election. And yes, they are from opposite sides of the political spectrum.Olson—who initiated the alliance—is a well known conservative heavyweight. In addition to representing Bush against Gore, he was the 43rd president’s first solicitor general, has served on the board of the right-wing American Spectator, and defended President Reagan during the Iran-Contra scandal.
On the one hand, WTF?
On the other hand, there are increasing numbers of political conservatives who think that the standard right-wing position on gays is not just silly, but profoundly unjust. Olson appeared sincere and determined as he announced the lawsuit, together with Boies, at a press conference last Wednesday. As he put it,
“I suspect there’s not a single person in this room that doesn’t have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.”
I couldn’t have said it better (which is exactly how Boies responded to Olson’s words, patting his colleague and erstwhile nemesis on the back.)
On the other hand (that’s three, and there will be more), doesn’t the timing seem wrong? That’s what many veterans in this fight—including folks at Lambda Legal and the ACLU—are saying. Olson and Boies seem determined to press this all the way to the U.S. Supreme Court. Call me a pessimist, but I can’t imagine the current or any near-future SCOTUS deciding in favor of full marriage equality. (I’d of course love to be wrong about this.)
Pushing this case too soon could be both judicially and politically risky. A loss at the Supreme Court would create binding negative precedent for ALL states, not just California. Such precedent is hard to undo. Moreover, if the case is pending during the 2012 presidential election, it could be a rallying cry for right-wingers.
On the other hand, assuming this case does reach SCOTUS, much will depend on the idiosyncratic Justice Kennedy—a swing vote who stood up for gays in both Romer v. Evans (which struck down Colorado’s amendment barring pro-gay ordinances) and Lawrence v. Texas (which reversed Bowers v. Hardwick and eliminated laws against sodomy). Romer, in particular, may be key backdrop for this case.
And even if we lose, forcing justices to put their arguments against equality in writing, for generations of legal theorists and law students to dissect, is bound to have a salutary effect long-term.
Moreover, the bi-partisan nature of this legal team, and particularly Olson’s conservative bona-fides, could be just what’s needed to nudge pro-gay conservatives out of the closet in supporting marriage equality. If—and I mean IF; a big, fat, entirely hypothetical IF—anyone could convince someone like Chief Justice Roberts to reject the constitutionality of Prop 8, Olson’s the guy to do it.
Olson’s no fool. This is a high-profile case, and that’s doubtless part of his and Boies’s motivation for taking it. They will be working “partly” pro-bono. It is unclear who’s paying for the other part, which surely won’t be cheap.
On the other hand, unlike the push for a ballot initiative to overturn Prop. 8 in 2010 or 2012, this case won’t require substantial monetary contributions from the cash-strapped grass roots. And if Olson and Boies don’t take up the case, someone else less well-positioned would likely do so.
On the other hand, Prop. 8 may not be the ideal case on which to pin this battle. Olson and Boies plan to argue on equal protection and due process grounds. But California still allows gays and lesbians to enjoy all the statewide legal incidents of marriage, just without the name “marriage.” I’m not suggesting that the name is unimportant. I am saying that it seems easier to make an equal protection case where the legal incidents, and not just the name, are obviously unequal.
On the other hand, I’m no constitutional scholar. And there’s momentum surrounding Prop. 8. And you gotta dance with them what brung you.
And it’s the momentum, more than anything, that gives me hope here. A super-prominent conservative attorney makes a strong and very public stand in favor of marriage equality, recognizing it at the key civil rights issue of our day. Even if we end up losing this particular battle, it’s hard not to grow more optimistic regarding the war.
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John Corvino, Ph.D. is an author, speaker, and philosophy professor at Wayne State University in Detroit. His column “The Gay Moralist” appears weekly on 365gay.com. Read more about him at www.johncorvino.com.
John will be a volunteer faculty member this summer for Campus Pride’s Leadership Camp for GLBT students. For more about Campus Pride’s work, or to make a donation on John’s behalf to support this year’s program, visit http://www.campuspride.org/.
I just have to wonder if they are doing this to forever stop all attempts at Same Sex Marriage. I don’t trust conservatives at all.
Remember what “Compassionate Conservativism” got us?
Marriage equality is not a conservative vs liberal, Democrat vs Republican, left vs right issue. Marriage equality transcends partisan lines and one’s politics. I think it is a great thing that Prop 8 is being challenged,, because if they win, they will also by extension eliminate all the other anti-gay amendments in other states. Do I believe that we should try to overturn Prop 8 locally, sure, sign the Yes on Equality petition, donate to Gavin’s campaign and vote. But Prop 8 and other amendments like it need to be overturned and Romer vs Evans gives the necessary precedent. Also don’t forget Article 30 of the UN Charter of Rights(down below), which the Supreme Court will nevertheless take into consideration.
So no matter what, we need to stop letting fear run the gay and lesbian movement. There will never be ideal conditions, so we have to take risks and move forward. We don’t have a leader, so we all need to agitate(in our own way, regardless of how) and push forward.
Article 30 of the UN Charter of Human Rights:
“Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” (In essence, there is no right to engage in any activity, be it voting or lobbying, which is aimed at denying the rights of others)
Here’s how I look at it. In the first place, I still am not overflowing with confidence that we can beat Prop 8 at the polls in CA. I hope we can and I’ll certainly support the effort as I am able, but frankly, we screwed it up last fall and I have yet to see clear signs that there have been any meaningful improvements which would avert another such mess this time around.
I think the CA Supreme Court opinion was a disaster and potentially very dangerous far beyond its effect on the GLBT community and gay marriage. It stands for the principle that a simple majority in any election may limit anyone’s fundamental rights. Although the complaint filed by Messrs. Olson and Boies was filed prior to the release of the opinion and doesn’t address it, it should and I suspect it will. This is appalling jurisprudence.
Then, unless Judge Sotomayor turns out to be an unpleasant surprise on the order of the late Justice Byron White, I count five members of the Court who either voted with the majority in Lawrence or would likely have done. And I don’t buy the notion expressed on another thread on this site that Justice Kennedy, who wrote the opinion, “bent over backward” to say it didn’t stand as a precedent for a Federal right to same-sex marriage. He made a passing comment and in context, I don’t think he was doing more than stating a fact – the Court hadn’t been asked to rule on that question and wasn’t. If you read Lawrence carefully, and I have, it, and Romer, stand for the principle that any kind of discrimination aimed at gay people is going to have a very rough time withstanding judicial scrutiny.
I also think the ACLU, Lambda Legal, and others who are complaining about this lawsuit are engaging in just the teeniest bit of turf-protecting.
I think the Chief Justice is a big questionmark on this issue and I think that if anyone could bring him around, Ted Olson could.
I don’t think we’ve got a lot to lose. Even an adverse opinion isn’t going to prohibit states from enacting same-sex marriage statutes. It will simply hold that no right to same-sex marriage exists under the Federal due process/equal protection clauses.
We don’t get to pick when we’re going to have our fights and we shouldn’t shy away from this one.
Jessica, Ted Olson is definitely a conservative, but he is also a partner in a major law firm and presumably well aware that undertaking any representation of any client in bad faith and then seeking by action or inaction to undermine his client’s case would subject him, at a minimum, to severe discipline and sanction. It could even cost him his license to practice. He took this case because he believes he can zealously represent his client. Period.
I fail to understand why a civil rights issue has to be determined by voters? I’d rather go the slower way, by state legislatures or state supreme court decisions without any forms of referenda or constitutional revisions, just like Connecticut did. Why risk everything by going to the federal court, we could lose everything, is that risk worth taking? Maybe I’m missing something.
I just want to point out the Registered Domestic Partnership gives committed gay couples in CA MOST of the rights of marriage, but until my husband and I got married this summer we were very close to technically violating the domestic partnership laws, but under marriage laws we were perfectly ok.
Domestic partners ship isn’t separate but equal, its just sort of kind of similar. Please don’t misquote facts. In this case separate isn’t equal in several important respects.
Christopher: I don’t understand what you mean that domestic partnerships in California are just kind of similar to marriage. The California Supreme Court in the Prop 8 ruling said that the domestic partnerships have to be exactly the same as marriage except for the name. I don’t dispute the significance of the name for us, but this ruling has the effect of strengthening the domestic partnership law. I would assume that a domestic partner can now refuse to testify against his or her partner; I also assume that now a domestic partner can insist on a confidential partnership just as a married can insist on a confidential marriage. Please explain in what way your domestic partnership is not equal to marriage except for the name.
Even though my newlywed husband and I have been together for over 31 years, we are about to celebrate our one year wedding anniversary here in California. We are also registered Domestic Partners.
We have found that separate but equal is never equal with respect to our Domestic Partnership and our new Marriage. For example, we were able to qualify for a reduction in our automobile insurance rate when we got married! I’m sure there’s many more inequities.
Cheers to Ted and David!
I say go Ted and David! I saw them on Hardball and Larry King. These guys mean business. They are also the best lawyers we would have ever had representing us; the ACLU and Lambda do a great job, but these guys are in a different league. I think there is a pretty good chance that Olson has a read on Roberts (he was in the Bush White House when he was nominated) and just beacause Roberts is a conservative (like Olson) he may well rule with us. That would give us leeway to lose either Sotmayor or Kennedy. Also, if they get the injunction, marriages resume and the repeal of 8 will become easier as more people are married and a vote to uphold 8 would equal a vote to divorce married coupes against their will.
I am going to have to agree with the others, watch them, but watch them from a supporting side. We keep saying it’s inevitable that we will have equal rights, so what does it matter if this fails. Yes it may set a negative precedent, but for how long. How long after the Supreme Court rules against us till the next case, how long until the younger generation gets old enough to vote, how much longer are we supposed to wait? Civil rights wars are not won state by state, they never have been. Major battles may be important, but are we really supposed to wait until Alabama, or Tennessee, decides that being Gay is ok before we are allowed to go to the Supreme Court? The same argument we are using against Prop 8 (that the majority cant decided the rights of the minority) works against the method of going slow and state by state. Some sates will never bow to the tide of humanity, even if we got down to 5 states that didn’t those five would fight even harder to stay different. The basic principles for our freedom is already out there, why are we trying to prove it over and over, we do not have equal rights or protections as provided for in the constitution. No matter how many cases go against us, that wont change, but for every case that goes against us another bigoted argument will be highlighted and countered, another few will decided that this is a pointless fight, and a precious fewer will realize they are not coming from a place of law but of fear and hate. So we should be cheering this odd couple on, we should be rallying behind there march on the supreme court, that way we can watch them closely, if it’s a trick it is already doomed to eventual failure.
Warren and John: Roberts is the great mystery. Olson may indeed know something. At Roberts’s hearing during his confirmation process, it was revealed that he had provided pro bono advice to the lawyers on our side in the Lawrence v. Texas case. So he may be a closeted libertarian. I agree with John that Olson is too serious a lawyer to be doing anything unethical here. I am not sure that his approach is necessarily the right one, but I can’t see how it can hurt us. As John remarked on another thread, any ruling would simply reflect the current make-up of the court, and when that make-up changes, one can try again.
Many people are afraid that if this case fails, the adverse precedent could block same-sex marriage at the state level. I think that fear reflects a fundamental misunderstanding about the respective roles of federal and state law.
An adverse decision by SCOTUS would only affect lawsuits that were going to be brought under the U.S. Constitution. Since those cases would ultimately have to be heard by the Supreme Court anyway, now’s just as good a time as any to try it. (When the Court’s composition later changes, we can take cases up there again to ask the Court to reverse itself — something it’s done MANY times on civil rights issues.)
Meanwhile, regardless of what SCOTUS says, state courts, legislative bodies, and voter initiatives all retain the power to establish marriage equality at the state level. In particular, claims under state constitutions would not be affected — the state constitutions are independent bodies of law from the U.S. Constitution.
Moreover, an adverse decision from SCOTUS wouldn’t even pre-empt Congress from enacting a marriage equality law (not that Congress seems likely to do so).
As a Californian and a practicing litigator, I think a federal case may be just what’s needed to undo Proposition 8. Remember that the California Supreme Court was hamstrung by a relative lack of authority to strike down Prop 8 — the voter initiative was not a mere law, but an actual amendment to the constitution, thereby rewriting the rules governing the court’s own analysis. So, the court was essentially stuck in a revision/amendment analysis, a murky and neglected thread of precedent that was unsuitable for such a momentous occasion.
SCOTUS would have no such limitation. To SCOTUS, the California Constitution is just another body of law, subordinate to the U.S. Constitution. Therefore, if the California Constitution says same-sex marriages can’t be recognized, and if the U.S. Constitution *does* require such recognition, the California Constitution itself will be held in violation of the U.S. Constitution and struck down.
If not, then it won’t — but that won’t affect any of the other avenues currently being pursued in this battle.
“It’s a free country,” or so they say, so why not? If it fails before the Supreme Supremes, it’s part of the shameful historical record. And maybe we’ll get lucky; something I’ve realised (unwillingly) is the fact that our freedom may well be won because of young heterosexuals demanding liberty and equality for all. We’re possibly going to become second-players in this, the fight for our rights. If these two lawyers can pull it off it’s a good thing.
This is obviously a deliberate plan to create just such a binding negative precedent. It doesn’t take much imagination to realize that appearing to fight for justice can be used to guarantee a desired unjust outcome.
This way gay marriage can be permanently eliminated all under the appearance of helping. Who would riot or fight back then? ‘They did their best, after all? right?
“It was just the will of the people”, will be the word, and because it will seem that way to most people, THEY WIN. Utterly. Finally. Completely.
Now sit down and shut up, faggot.
Flawless victory. Finishing move: ironic duplicity. You have been had.
“But California still allows gays and lesbians to enjoy all the statewide legal incidents of marriage, just without the name “marriage.” I’m not suggesting that the name is unimportant. I am saying that it seems easier to make an equal protection case where the legal incidents, and not just the name, are obviously unequal.”
Bald faced lie. Apparently Corvino did not bother reading the suit that Olson filed in the 9th circuit. Olson clearl demonstrates the newly formed unequal classifications of domestic partners on pages 6 & 7 of the complaint.