Monday, June 01, 2009

Courting Backlash

I'm in complete agreement with John Dean in his assessment of the risks inherent in the federal court challenge to California's same-sex marriage prohibition being spearheaded by uber-lawyers Ted Olson and David Boies: There is a substantial probability that the 9th Circuit will invalidate the ban, teeing the case up for the Supreme Court; at that point, a SCOTUS decision upholding the same-sex marriage ban could set back the cause of marriage equality by a decade. Indeed, I would add that there's a further risk: If the Supreme Court were to invalidate the ban, that could inspire a backlash that would re-energize the currently moribund religious right, and possibly even lead to a constitutional amendment banning same-sex marriage. Given the progress that is being made with a state-by-state approach, this is a very high-stakes gamble. Based on my own discussions with various players in the LGBT legal community, I agree with Dean's view that there is a great deal of justified anxiety about what Olson and Boies are up to. Here I'll add a few observations.

1) It's not clear to me that there are more than two votes on the Supreme Court to invalidate a same-sex marriage ban. I assume Justices Stevens and Ginsburg would vote that way but based on his views about the need to take account of public reaction (as expressed in the Texas Ten Commandments case, for example), I could see Justice Breyer concluding that it is too soon to invalidate a same-sex marriage ban, especially in a case coming from California, which has domestic partnerships/civil unions. I think if push came to shove, Justice Kennedy would probably be a fifth vote to invalidate a same-sex marriage ban, partly because he would not want to cast his lot against the cause of LGBT equality, given his historic role as the author of Romer v. Evans and Lawrence v. Texas. But I don't know that he would be the third vote. His Lawrence opinion went out of its way to distinguish marriage, as Dean notes. Intriguingly, for Kennedy, the fact that the case would come from a state with civil unions might make him more sympathetic to the plaintiffs, because that fact would make clear that the withholding of the term "marriage" is a purely symbolic harm, and thus an insult to the dignity of same-sex couples. Across various domains--equal protection, abortion, federalism--Justice Kennedy has shown a concern for dignity. But this is just speculation at this point.

2) That gets us to four votes at most. (I'm assuming that Justices Roberts, Scalia, Thomas, and Alito are certainly going to vote against a right to same-sex marriage.) And in an odd way, this could mean that Judge Sotomayor has a better answer to the question she will inevitably face during her confirmation hearing.

Q: Do you believe the Constitution guarantees a right of same-sex couples to marry?

A: Senator, I can't answer that question because there is currently litigation pending in the lower courts on precisely this issue, and I don't want to pre-judge the matter.

Sure, she could say something like that anyway, but the pending litigation gives her better cover. As to where a Justice Sotomayor would ultimately end up on the issue, the company she keeps suggests she'd probably vote with the liberals to find a right here, if there were enough other votes that way, but this too is just speculation.

3) The complaint that Boies and Olson filed puts forward two constitutional grounds for relief--due process and equal protection--but it in fact encompasses four alternative theories:

a) California law denies same-sex couples the fundamental right to marry;

b) California law unconstitutionally discriminates on the basis of sexual orientation;

c) California law unconstitutionally discriminates on the basis of sex; and

d) Prop 8 is the product of "animus" in the same sense as Colorado's Amendment 2 struck down in Romer v. Evans was the product of animus.

Those are basically all the theories one could plausibly advance. Prior lawsuits brought by Lambda and other gay rights groups have avoided advancing the argument that sexual orientation is a "suspect" or "semi-suspect" classification, presumably for fear of making bad law. The Boies/Olson complaint does not state whether the equal protection theory of b) asserts the suspect/semi-suspect classification point, but that point is clearly encompassed within the complaint, and given the caution-to-the-winds approach of this lawsuit as a whole, I'd be surprised if they didn't advance the argument in the course of the ensuing litigation.

4) The conflict between the interests of clients--who understandably want to win justice for themselves now--and the interests of a movement--which must consider long-term risks as well as immediate possible benefits of litigation--is hardly unique to this case. It is endemic to the work of public interest litigators. Indeed, it is actually surprising that nobody has brought one of these lawsuits before. However, it's important to note that the Boies/Olson complaint is not a case of a client hiring lawyers to pursue the client's own interests, to the possible detriment of the cause. This case is being backed and funded by a new organization, the American Foundation for Equal Rights. The decentralized nature of litigation in the U.S. gives it and the plaintiffs (two couples) the right to follow this course. Whether it succeeds or backfires remains to be seen.

Posted by Mike Dorf


egarber said...

Is it possible that the Ninth Circuit might not find for the plaintiffs -- not to deny the right outright, but to essentially say there's nothing directly controlling yet from the SCOTUS?

I guess even on that long shot, you'd simply have an appeal (upward) the other way around.

Paul Scott said...

My inclination is to agree that this is a mistake. I am not even sure Sotomayer could be so easily counted. I expect her to be a generally liberal justice, but she is still a practicing Catholic. Abortion and Gay Rights might not be in line with her otherwise liberal approach.

FWIW, I don't think Center for Reproductive Law and Policy v. Bush necessarily projects her votes on abortion. But the mental defect that results in her believing that the Pope personally talks to an invisible all-powerful being that doesn't like abortion or gays does concern me.

Bill Abendroth said...
This comment has been removed by the author.
Bill Abendroth said...

'm not going to comment on the "blacklash" issue (which, of course, is the whole point or the article), but I want to ask you what you'd think about an establishment clause attack on same-sex marriage bans? Going back to Lemon v. Kurtzman? ASSUMING that the Justices don't dismiss it out of hand for not being an "excessive entanglement," what would be the "secular purpose" for a same-sex marriage ban, especially considering that civil unions ostensively provide gay and lesbian couples all the "secular" protections of "marriage"? Additionally, doesn't a same-sex marriage ban promote the religious views of those who are anti-gay, while inhibiting the free exercise of those who want to be "married"?

I have a long rant on this (also talking about equal protection and the (sort of) fundamental right after Lawrence v. Texas). But I think states are going to be hard pressed to show they have any "legitimate" interest in different-sex marriage--especially after Williams v. North Carolina (upholding the Nevada divorces under full faith and credit), and given that 49 states allow no-fault divorce.

Getting back to the backlash, I don't think that's something to be concerned about. First, because of culture and attitude of younger Americans, we'll have same-sex marriage--the only question is when. Second, I just think conservatives and the "religious right" have got other fish to fry right now. It's hard to get that worked up over gay marriage, when the stock market has lost over 40% of its value in less than a year. Two years ago, would you have believed that a Democratic President could "buy" a 60% ownership of General Motors, and NOT have every conservative manning the barricades?

Bill Abendroth
Samsara Samizdat

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