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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 say go for it. its about time somebody stood up and said civil rights are for every american,marraige is nothimg more then a civil right.and gays are just as american as anyone else,i,d like to hear what they have to say about that.
Olson and Boies’s case is obviously extremely foolish at best and evilly duplicitous at worst. You are being gullible, John
If something appears too good to be true, it probably is
Don’t forget that today’s Bible is the resulted of centuries long review and filtering of texts written over a period of more than a 1,000 years by hundreds of authors, that the Catholic Church admits to have reviewed and carefully selected, edited,and compiled into what they now call “The Holy Bible” – The word of GOD.
Bolony! “The Holy Bible” is the greatest work of cruel, dictatorial thought control and persocusion ever produced. It’s sole purpose is to control the minds and bodies of humman beings in a manner that those humans will finance the support of a group of men that produce not one cent to the gross national product of any nation while fostering and encouraging we humans to oppose and even kill anyone that tries to live their lives without religious thought control and the financial support thereof.
I really hope i’m wrong, but i highly doubt that Roberts or Kennedy will decide to invalidate Prop. 8. I also highly doubt that Olson has any credible basis for believing that Roberts will rule for the plaintiffs. This case will be a bad tactical move if it turns out that a Supreme Court precedent is established upholding the constitutionality of Prop. 8.
Ive already said elsewhere that Im thrilled to see some independent litigation instead of the “gay orthodoxy” trying to set the pace for everyone.
First, applause for the article.
Second, so what if they fail. Worse case scenario: The SCOTUS justices go insane and invalidate every same-sex marriage in the US. (Im exaggerating). So what.
Does anyone really think that would stop progress? Does anyone really think the tide will turn? Are theyre really “gays” out there that use court decisions to measure how much discrimination they will suffer, how much self-respect that theyre willing to see sold for the sake of a placated majority?
Every trial represents a fuse. Its just a question of whats at the end when it burns out.
I for one am tired of people among us trying to win civil rights by bringing a chess board to a boxing match.
@Jay–Even if California DP registry allowed all the same state rights and responsibilities, that M-word makes a difference, and the proof is experience in both Connecticut and New Jersey. Connecticut’s Supreme already ruled on it, and the legislature has already expanded the state’s marriage laws to cover same-sex couples. New Jersey has not done so, and there’s a growing list of people in Jersey who find that their insurer does not have to add a domestic partner to their insurance, despite what the state says. The cop from the Jersey Shore who died of cancer, and had to fight to the end to make sure her wife got the same benefits any opposite-sex spouse would have? That’s a public employee–if government can’t follow its own rules, and won’t enforce them in the private sector, then domestic partnership is legally worth only the ink and paper used to print it. It’s glorified Charmin.
If domestic partnership is the same as marriage, except the name marriage, then you’re creating a parallel institution where the original one works fine. That means that you’ve created a suspect class–why is one segment of the population not allowed to take on those rights and responsibilities, something that prison inmates can do even if they’ve lost their voting rights? That can also be considered a violation of contract law, since enforcement of DP provisions will be uneven, but the standards for marriage will be the same because they follow the law.
I say get on with it. Two sharp legal minds on the same mission. Godspeed.
Mr. Covino, I liked your article this week. You know, on this past Memorial day we commemorated the sacrifices that heroes have made for our great nation in the past. Equality and justice for all. 7 decades ago WW2 was fought with 1 side the force of good, and the other the forces of evil. For a while it looked like the evil side would win it all. It looked pretty bad for the allies. Fast forward to 21st Century USA, the prop8 fight took what was once a purely CA affair, and turned it to a national civil rights cause. Hopefully like the allies of that long ago great war, we will persevere too. Afterall, we at the heart of it – are right.
I think if anyone wants to challenge a law on behalf of a gay client, the timing is always right. There is no legal Wizard of Oz who should have a say about the timing. I don’t think there is ever a winning strategy, because these decisions are unpredictable, even in places that are supposed to be conservative. Look at the Iowa Supreme Court and New York Supreme Court! New York judges said that marriage is for having babies! So no, they should GO FOR IT.