The Olson/Boies Same-Sex Marriage Lawsuit: Too Much, Too Soon?

Thurgood Marshall had an easier time of it. Back in the 1940s and 1950s, Marshall and other lawyers at the NAACP Legal Defense Fund kept a tight rein on litigation aimed at dismantling racial segregation.

As a ruling by a federal judge in San Francisco yesterday showed, it is much more difficult these days for gay rights lawyers to keep tight control of lawsuits aimed at challenging government policies that discriminate against LGBT people.

As is well known, two prominent lawyers with little experience litigating gay rights issues--Ted Olson and David Boies, former adversaries in Bush v. Gore--filed a complaint in federal court in May challenging the constitutionality of California's Proposition 8.

For more than fifteen years groups like the ACLU, Lambda, and the National Center for Lesbian Rights (NCLR) have pursued a careful and methodical legal strategy that has sought to challenge restrictions prohibiting same-sex marriage in a limited number of jurisdictions on state constitutional grounds. This strategy has been, on the whole, remarkably successful. In fact, almost no one could have credibly predicted fifteen years ago that by 2009 six states would legally recognize same-sex marriages.

The gay rights movement's lawyers, however, have been careful of not asking too much, too soon of the courts. There has been a widely shared view among movement lawyers, for example, that the time is not yet right to ask federal courts to require the recognition of same-sex marriage across the country by holding that it is impermissible under the federal constitution to prohibit same-sex couples from marrying. In the same way that Thurgood Marshall would have likely lost Brown v. Board of Education if he had brought the case a decade before he did, gay rights lawyers believe that it is too soon to ask the U.S. Supreme Court to require all 50 states to recognize same-sex marriage. To put it simply, there does not appear to be the five votes on the Court required for such an outcome.

This is why most movement lawyers have been nervous from the moment the Olson/Boies lawsuit was filed in May. And this is why in July, the ACLU, Lambda, and the NCLR filed a motion seeking to intervene in the case. If they were not able to prevent the lawsuit from being filed, at least perhaps they would be able to participate in it and bring to bear their extensive experience litigating gay rights issues.

But yesterday, Judge Vaughn Walker of the federal district court in San Francisco denied the motion to intervene, ruling that Olson and Boies could adequately represent the interests of those seeking to challenge the constitutionality of Proposition 8 without the direct involvement of the gay rights groups.

There is still a long way to go in this one. A trial has been scheduled to begin in January. Whatever the outcome of the trial, the case will undoubtedly be appealed to the U.S. Court of Appeals, and then to the U.S. Supreme Court. It will likely be another two years before the nation's highest court is put in the position of deciding whether to hear the case.

For better or for worse, the lawyers who have been leading the legal battles for same-sex marriage will be watching all of this from the sidelines, their role limited to the writing of amicus (or "friend of the court") briefs. Although there are many of us who believe that the time is not yet right for this kind of federal constitutional lawsuit, the question no longer is whether the lawsuit should be brought, but whether it will succeed. Mr. Olson and Mr. Boies seem confident that it will. I hope they are right. But if they are not, they will likely go back to their high-powered law practice, leaving it to the gay rights organizations to pick up the pieces.

Comments

[oafishcad]

Justice delayed is justice denied.

[DinkSinger]

The New York Times published an excellent piece about Ted Olson last Tuesday "A Conservative’s Road to Same-Sex Marriage Advocacy".

Olson's arguments against Prop 8 are based on two Supreme Court cases.

In Romer v Evans, the court ruled in a 6-3, 1996 decision found that Colorado's Amendment 2 that prohibited civil rights protections for GLB people violated the equal protection clause.

The other case, Lawrence v Texas, decided in 2003 also 6-3, struck down criminal sodomy laws. Justice Kennedy wrote of homosexual adults, "Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government." Although Justice Kennedy included the observation "It [the present case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.", Olson points out that Justice Scalia in his dissenting opinion insists that under Lawrence same-sex marriage is protected. Scalia wrote: "Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct; ... what justification could there possibly be for denying the benefits of marriage to homosexual couples ... ?"

[Republicnotademocracy]

Time for justice to prevail. These 2 lawyers are champions.

[ignoranceequalsfear]

I'm not sure, but is Mr. Ball, in this post, questioning whether this suit is being brought on precisely so that it WILL lose??

I have wondered this very thing myself, given who is initiating it.

Paranoid? Maybe. Possible? I think so.

[Romulus]

Least anyone misinterprets what I'm about to post here, let me state once again that I'm in favor of legalizing SSM. But if I were to argue against Olson and Boies, this is how I would do it:

(Keep in mind that this suit is only about California law and not about any national laws)

Bearing in mind that the LGBT community is not a protected class, all laws affecting that community may be examined under a rational basis. The California Supreme court has ruled that Prop 8 only defines the word marriage. It has ruled further that the State of California is required to afford SS unions, by any name, the same rights, privileges, benefits, and resposibilities as those afforded to opposite sex marriages within the state. Since it is obvious that a same sex relationship is inherently different than an opposite sex relation, it is entirely appropriate to designate it differently and is constitutional as long as each type of relationship is afforded the same rights, privileges, benefits, and resposibilities.

[DinkSinger]

The suit is not about California law. It is a Federal Constitutional issue.

With respect to California law. The California Supreme Court has not ruled that the State of California is required to afford SS unions equality. That question was never before the court, since the legislature created a separate by equal institution, Domestic Partnership. In In re: Marriage Cases the court's analysis was exactly the opposite of yours. The court wrote: "Accordingly, the legal issue we must resolve is not whether it would be constitutionally permissible under the California Constitution for the state to limit marriage only to opposite-sex couples while denying same-sex couples any opportunity to enter into an official relationship with all or virtually all of the same substantive attributes ... The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the California Constitution."

They also found that strict scrutiny did apply because laws based on sexual orientation "represent ... a constitutionally suspect basis upon which to impose differential
treatment".

Here's a link to the full opinion: http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF

[FlexSF]

We should ask for permission from absolute strangers, via a vote, if we can get married. Then our opponents can lie, and effectively scare everybody into being against us, like they've done forever, and make millions of dollars doing it.

Instead we're directly challenging their lies, and scare tactics, and demonstrating, and proving that the outcome of proposition 8 didn't do anything to promote their hate filled, violent actions towards us. We're going to rub their faces in their own pile of stinking crap!

Win or lose, I am so happy for this federal challenge. If we lose this fight, we will at the very least take out an eye or two from our opponents with us!

[Romulus]

"Taking out an eye or two" is more important than winning?

[FireManRDU]

I don't know - did the patent ridiculousness of the 1986 Bowers v. Hardwick decision upholding anti-sodomy laws help or hurt gay rights? My guess is neither. When the Court was ready to strike down sodomy laws in Lawrence v. Texas, they did it, Bowers notwithstanding.

Numerous state courts and legislatures struck down anti-sodomy laws in the intervening years, including Georgia, where Bowers originated.

My gut tells me keep fighting!

[CornetMustich]

Interesting essay.

Joe Mustich, Justice of the Peace, Washington, Connecticut, USA.

[Poboy]

Pick up the pieces?

What the hell are you talking about?

First off, Marshall's Brown v Board of Education decision in 1954 still hasn't been implemented" with its all "deliberate speed."

Second, Olson and Boies are doing a "Great "service to the gay community, whose leadership is failing their communities with their caution, weakness and indecision. We NEED NEW LEADERSHIP.

[FearlessFreep]

Doing nothing works SO much better!