The Complex Questions About the Marriage Equality Movement and the Olson/Boies Federal Lawsuit

(There are Questions of the Day in this post as well.)

Bush v. Gore adversaries Ted Olson and David Boies appeared on Larry King last night to make their case why it's the right time to pursue a federal decision on marriage equality arguing that Prop 8 violates the U.S. constitutional guarantee of equal protection and due process.

They present a logical argument on why the Prop 8 ban on marriage equality is wrong, citing that marriage is a basic human right and states should not be allowed to discriminate. For instance, when they appeared later on CNN with John King, Olson asked whether Dr. Martin Luther King would have stated the country should pursue equality on a state-by-state basis, or that desegregating the schools was a state's rights issue and we'll wait until the people catch up to change matters. BTW, Olsen said that they did consult with LGBT orgs, which all urged them not to pursue this case at this time, but are moving forward using the reasoning that the four couples they represent should not have to wait for fundamental rights based on the U.S. Constitution.

You can't disagree with the merit of these arguments, really. What is causing a great deal of consternation in LGBT organizations is the approach and timing -- the orgs strongly disagree with this case because they feel it is too soon to bring the matter up on a track to be heard by the current U.S. Supreme Court at this time, which is why you see the speedy press release from the coalition of orgs restating its strategy (see my earlier post).

The groups released a new publication, "Why the ballot box and not the courts should be the next step on marriage in California." This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised "Make Change, Not Lawsuits," which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.

This approach has merit as well -- on the basis that incremental change allows people to learn, on a personal basis, that there is no threat to our country or any one else's marriage because gay and lesbian couples simply want the same rights as they do.

OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level, the alwsuit is a direct challenge to this White House. The Obama administration has tried mightily (and ridiculously) to keep this a states' rights issue -- to the point of believing there's no reason to even have to publicly recognize the progress and setbacks.

In my opinion, this is also a part of the motivation behind the Olsen/Boies lawsuit. After all -- how can you have a President of the United States who is a constitutional scholar out there saying "God is in the mix" and tossing off "it's an issue best left to the states"? After all, his parents' relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.

Again, this is a political problem of candidate and President Obama's own making that is now blowing up in his administration's face. I'm not surprised that this is happening; I am kind of surprised it's happening so soon -- but we, the LGBT orgs, and the big brains at 1600 Pennsylvania Avenue do not have the ability to shut down the constant equality questions being bombarded at Robert Gibbs or a lawsuit like this.

I'm not arguing that Boies and Olson are pursuing the right strategic path, mind you, but I understand the sentiment and frustration behind it -- I'm just tossing this out there as a discussion point, since we are all tired of the disingenuous BS coming out of the Obama White House through the clownish, embarrassing dodges of Press Secretary Robert Gibbs nearly every day. Also, we don't see any of the LGBT orgs criticizing the non-answers and evasive maneuvers coming out in the name of our "fierce advocate" at these pressers -- do you think this silence would have occurred under Bush?

So this is where we are, and it's a complete mess. Anything remotely representing a planned strategy is obliterated; now everyone has to deal with the reality at hand, including the fact that the most recent polls show a drop in support for marriage equality from last month (see chart below), a result quickly picked up by the fundies. Of course looking at the progression over the years, the change in level of support has risen dramatically, which underscores the fact that those who oppose equality are going to lose this battle in the long run:

But, there's an obvious question lurking there that represents the underpinning of the federal lawsuit -- why do polls matter at all, other than for political cover? Everyone participating in this kabuki dance knows we're dealing with a fundamental right -- and civil rights should never be determined by polls, the ballots or politicians. This will be determined by the U.S. Supreme Court.

And about all of the questions about who's funding the Boies/Olson case. I've heard that it's prominent wealthy progressives bankrolling the American Foundation for Equal Rights, so that would deep-six the Olson right wing conspiracy stories.

But if you think about it, this issue of who is funding the federal lawsuit is kind of irrelevant on some level. The situation, regardless of political persuasion, is really about whether the goal of marriage equality is seen as an incremental process leading to a positive resolution, or, as with prior civil rights movements, seen as a fundamental constitutional issue because 1) the states will never consistently settle the matter, and 2) in the absence of a federal decision, in layman's terms, you simply cannot have a civil right in the U.S. that one loses based on driving across the wrong state line.

***

So it's a very difficult series of Questions of the day for you --

* Is Boies' and Olson's rejection of the current legal strategy supported by our orgs a tactical error for the marriage equality battle?

It represents a "Hail Mary" approach, polls and pols be damned, to solve the patchwork problem of uneven equality around the country all at once, taking the moral high road. But it's a chance the ball will be dropped and the setback with a loss could seriously damage the movement for marriage equality

* Is pursuing equality on the path our LGBT organizations represent a sound strategy?

The path of taking the state route gains rights for gay and lesbians with each success -- and it also ends at SCOTUS. However, it forces those in states with constitutional bans on marriage equality to languish without full civil rights until a favorable decision at that level at some unknown point in the future. It also relies on additional gains that can be made with the repeal of DOMA, for instance, something also promised but that we may not see any time soon.

***

I received an email from Tobias Wolff, Professor of Law at the University of Pennsylvania Law School, who had these interesting and thoughtful matters to share as we discuss this.

In 1972 -- 5 years after Loving v. Virginia, the anti-miscegenation case -- the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality. In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal "for want of a substantial federal question." This is a type of action that the Court uses only infrequently -- even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided -- in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court's earlier action.

As should go without saying, the Supreme Court's summary dismissal in Baker v. Nelson was flat wrong. It was wrong when it was decided in 1972, and, more to the point, I doubt that any serious lawyer would argue that it can be defended on the merits today. Even if you disagree with the constitutional arguments in favor of marriage equality, I don't think anyone could argue today that the issue does not present a serious and substantial question, especially in light of the Court's rulings in Romer v. Evans (the Colorado / Amendment 2 case from 1996) and Lawrence v. Texas.

But the Supreme Court has also said, on several occasions and very forcefully, that lower federal courts are not permitted to disregard binding Supreme Court precedent simply because there have been intervening changes in the Court's own cases that undermine the original decision. Rather, the Supreme Court has said that it is the Court's job, not the job of lower federal courts, to say when an earlier Supreme Court precedent has been effectively overruled by subsequent developments.

What does all of this mean for the Olson/Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it's entirely possible that the Olson/Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.

Two more quick points. This kind of "dismissal for want of a substantial federal question" is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim -- that the federal government can't discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints -- in the end, they do not make the more careful argument but instead just go for broke.

Comments

[K.J. Dwyer - Huffpost Blogger]

With regards to the state, marriage is, first and last, a civil contract. The proof of this is that when one seeks to dissolve a marriage, they don't go to their priest, minister or rabbi to get a divorce; they go to court.

The fundamental problem with marriage in the United States is that clergy are allowed to administer the civil contract of marriage. Yes, people have to obtain a marriage licence through the public sector, but practically any ordained "minister" can perform a legal marriage once that licence is obtained.

By giving the power of the state to the clergy to administer civil contracts, the United States has blurred the line between the Separation of Church and State and allowed religious bigotry to "define" what a marriage is.

If every citizen were required to stand in front of a judge to get legally married, the incoherent rants of religious bigots would be relegated to their proper, marginal place and this whole initiative to deny gay people the franchise of marriage would be a non-starter.

To that end, there should be a counter-initiative to deny the clergy the power to perform civil contracts. I'm sure such an initiative would lose at the ballot box, but it would highlight what is a fundamental flaw and inequity in the system and might make the religious think twice before denying others their civil rights.

[Quislet]

I have my fingers crossed with their lawsuit. It will be great if it succeeds, but will be a major step back and roadblock if it doesn't.

[eleutheros]

The Obama Administration is being driven by one thing and one thing only .... the 2010 elections! I can still remember, as they may do, the front page of the NY Times following the 1994 midterms. There he was, head down and taking the blame. Bill Clinton had to accept the blame for allowing, what turned out to be the beginning of the Republican onslaught. That said, everything Obama does right now, politically speaking, is being tailored so as not to repeat that mistake. If it means turning one's head to what may be an injustice, so be it. Dems have a tenuously slim majority right now, with some very middle of the road members on the fringe. Until the President gains a sizable and predictable majority. Then, and only then, will be HOPEFULLY see a meaningful move in the Progressive direction. At the moment, Republicans are in a hole and only seem to being digging deeper. There is no advantage to throw them life line now. The President, and his Chief of Staff, are pragmatists first, ideologues second. Patience should be the mantra now.

[DinkSinger]

One important aspect of the original California Supreme Court decision in the original case, In re: Marriage Cases, was that in its opinion the court said "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, but rather whether our state Constitution prohibits the state from establishing a statutory scheme in which both opposite-sex and same-sex couples are granted the right to enter into an officially recognized family relationship that affords all of the significant legal rights and obligations traditionally associated under state law with the institution of marriage, but under which the union of an opposite-sex couple is officially designated a 'marriage' whereas the union of a same-sex couple is officially designated a 'domestic partnership.' "

The US Supreme Court might very well decide that a law (or state constitution) that prescribes a different name for same-sex relationships but otherwise treats them identically to opposite-sex relationships is unconstitutional even applying the "rational basis" test, the lowest level of scrutiny.

The risk is that such a decision might make it much more difficult to obtain any rights for same-sex couples in the red states.

[BoyInBOYCOTT]

These two assumie they can take a case about LGBT Human Rights, AGAINST the will of LGBT organizations, is RISKY at minimum, and suspect at WORSE.

I don't trust these two, to have the best interest of MY community. FUNDING this case should be looked at very carefully.

One fail safe is these two lawyers if they knowingly harm LGBT human rights equality Nationally, will have NO WHERE to hide where gays won't FIND THEM.

[SFLefty]

I am prepared to trust the judgment of two lawyers who between them have something in the neighborhood of 80 years experience with the Supreme Court over the groups that we trusted with $45 million to defeat Prop 8 only to see the worst campaign since Amendment 2 passed in Colorado, the McGovern campaign in 1972, or New Coke!

[eleutheros]

You're able to comfortably trust a Republican like Olson? As far as Boies goes ... Olson took him to the shed in a case that should have never even been reviewed by the Supreme Court. But that aside, Scalia, Thomas, Roberts and Alito haven't a Human Rights bone in them. The whole thing will comes down to Kennedy and presumedly Sotomayor, who is an unknown CATHOLIC quantity right now. And even with a win there, unless it's 9-0, your're still going to have state challenges. Lose, and forget about it. The thing still needs more grass roots. Two more states need to take the plunge, with a third on the cusp.

[caphillprof]

While I think a Supreme Court case is probably premature because of the need for a better developed record, I also fear we may need a Dred Scott decisiion, one that will embarass sitting justices within as few as 5 to 10 years' time.

[mmerose]

"God is in the mix." The Constitutional issue I see, is, whose god? Did the part of the Constitution prohibiting the government from "establishing" religion, or a particular religion, get deleted along the way? Don't we have a situation now in which government(s) are "establishing" weddings performed by some religions, but not some weddings performed by other religions? (And, yes, gay marriage can easily be differentiated from polygamy, etc. There is "compelling state interest" in regulating unions that have demonstrable undesirable social effects, as in child abuse of girls in the existing polygamous communities, and expulsion/­abandonmen­t of boys.)