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