On July 8, our leading national LGBT legal organizations -- Lambda Legal, the ACLU, and the National Center for Lesbian Rights -- filed a motion to intervene with the federal district court that is hearing the constitutional challenge to California's Proposition 8, the case that was begun in May by high-profile lawyers Ted Olson and David Boies. The groups have asked to join as full participants in the lawsuit, representing community organizations PFLAG, Our Family Coalition, and Lavender Seniors of the East Bay. And that is a very good thing.
When the Olson and Boies team first filed their federal lawsuit, advocates and other leading national voices raised some questions about timing and strategy. It was important to talk these questions through. Any high-stakes lawsuit requires a careful weighing of benefits and risks, especially one that might ultimately wind up in the Supreme Court of the United States. But that die has been cast. Now, it is time for an all-hands-on-deck approach to this important effort.
In starting this lawsuit, Ted Olson and David Boies have already helped to change the national conversation surrounding the issue of marriage equality. The mere fact that a high-profile Republican like Olson would place his name behind this fight is an important sign of how far we have come. Many will remember Olson as the lawyer who argued the Bush v. Gore case for George W. Bush and went on to be President Bush's first Solicitor General. The endorsement for marriage equality by such an iconic Republican figure, when combined with support from other Republican voices like Steve Schmidt, John McCain's former campaign manager, can help to move us away from the polarized political terms in which LGBT equality has so often been discussed. David Boies reiterated this message in a recent op-ed in the Wall Street Journal -- one of the most conservative editorial pages in the country -- calling LGBT equality an issue of justice that should transcend party politics. We should recognize the sea change that these efforts represent and capitalize upon them in our public advocacy efforts.
Just as important, we must now maximize our chances for a good outcome in the court challenge to Proposition 8. That is where the expertise and experience of our LGBT legal advocates is key. District Judge Vaughn Walker has made it clear that he wants to develop a full factual record in this case on such issues as the social science evidence surrounding children and LGBT parents, the history of discrimination against LGBT Americans, and that old chestnut of an argument, the purported impact of marriage equality on the relationships of straight couples. Consider the expertise that our legal advocates will bring to the table in this effort.
In the Iowa marriage case, Lambda Legal led a path-breaking effort to rein in the use of junk science and other abuses of expert testimony in litigation involving LGBT families. Iowa's unanimous ruling in favor of marriage equality is a testament to their deep knowledge and strategy.
In California, NCLR's leadership was instrumental in educating the courts about the history and impact of discrimination against LGBT families. Their efforts helped to produce last May's historic marriage equality ruling, permitting an estimated 18,000 couples to marry before Proposition 8 took those rights away.
In Alaska, same-sex couples are now entitled to fully equal benefits from their government employers; in Florida, the discriminatory ban on adoption by gay and lesbian parents has been declared unconstitutional; in Arkansas, a challenge to a discriminatory ban on gay foster parents is now underway -- all because of the leadership of the ACLU, which has systematically educated courts about the data and research demonstrating the equal capacity of LGBT parents to provide loving and nurturing homes for children.
Lambda Legal, NCLR and the ACLU have been participants in every major effort to secure equal treatment for LGBT couples and families in the United States in the last twenty years, including every victory we have achieved. When the groups weighed in with a friend-of-the-court brief in June, urging the district judge to recognize the irrational discrimination that Proposition 8 represents, the Olson-Boies team hailed the decision, praising the "inspiring leadership and legal expertise" that the groups brought to the fight and confirming the need for a "united front." Now that the district court has announced that it will develop a full factual record on the issues in this case, the leadership and expertise of our legal advocates is even more important.
I was one of those voices that raised questions about timing and strategy when the federal lawsuit was filed. I am willing to admit that I may have been wrong, and that the Olson-Boies team may prove to have been visionary. Only time will tell. Our goal right now must be to ensure the best possible outcome for this lawsuit.
We all agree: Proposition 8 is an unconstitutional and discriminatory denial of equal rights, under any legal standard. With the full participation of Lambda Legal, the ACLU, NCLR, and the community organizations they represent, we will present a united front in advancing the compelling evidence and making the case to the federal courts.
Tobias Barrington Wolff is a law professor at the University of Pennsylvania and a visiting professor at Harvard Law School. He co-authored and submitted a friend-of-the-court brief in the federal challenge to Proposition 8 on behalf of Equality California.
We will never succeed in conveying the idea that people can be opposed to same-sex marriage without being proponents of a legal ban. While I have yet to entertain a coherent argument that supports the notion that on couples gay marriage has any effect on any other couple's "traditional" marriage, this issue creates a visceral reaction.
I fear that the People's Veto initiative in Main will succeed. NOM and Focus on the "Family" are spending a fundamentalist fortune on high priced consultants and spinners to stop gays from marrying. For Focus, it is an issue of faith. In contrast, Maggie Gallagher has honed her personality disorder into a solid six-figure income. NOM is a not-for-profit (for profit) enterprise. Their motives are irrelevant. Gay bashing remains an easy sell.
I want to know who elected you to represent me. I do not remember EVER giving you permission to represent me and there was no vote electing your organization as the "go to person" in our civil rights.
A lot of us are tired of organizations like yours deciding what is best for us.
Defeating Prop 22 in 2000 = FAIL!
No on Prop 8 in 2008 = FAIL!
Getting the previous 3 administrations and the current one to grant us federal civil rights = FAIL!
The recent CA Supreme Court decision on Prop 8 = FAIL!
“Prepare to Prevail” statement in California that is urging the LGBT community in California not to go back to the ballot next year to repeal that state’s same-sex marriage ban = FAIL!
First coming out in opposition to the federal challenge mounted by Theodore B. Olson and David Boies then when they see it is going to happen without them try and jump on the bandwagon =
MASSIVE FAIL!
It is time the torch of our fight for equality passes to someone that can get it done. The American Foundation for Equal Rights suit doesn't need or want your lame help. Back away from the litigation and the effort to place same sex marriage back on the ballot in CA in 2010 and stop trying to undermine us to keep your paychecks flowing!
But while we're on the subject:
Romer v. Evans - WIN! (1996 - said that Colorado couldn't amend its constitution to prevent local governments from passing protections for gay people)
Lawrence v. Texas - WIN! (2003 - overturned sodomy ban in remaining states)
In re Marriage Cases - WIN! (2008 - Oh yeah... the victory that Prop 8 overturned - why were you not paying attention until it was taken away from you?)
Varnum v. Brian - WIN! (2008 - won marriage in Iowa)
Not to mention dozens of smaller victories.
These groups hardly ever lose, and in fact, are behind the biggest victories in the gay rights movement. Skewering them for one loss out of decades of wins is unfair. Their input should be both welcomed and appreciated.
The Constitution, in conjunction with the scientific fact that homosexuality is a non-disordered sexual orientation, makes all forms of heterosexism unconstitutional. Therefore, a correctly-fashioned case must lead to the demise of DOMA.
If, as some have argued, the justices on the Supreme Court are not yet ready to follow the Constitution, we may end up with a faulty/heterosexist decision that defies the Constitution. If that happens, it would be unfortunate, but the blame would rest with the justices if the case is correctly fashioned.
Therefore, the time is now to uphold the Constitution. The only thing opponents of heterosexism should be doing is supporting efforts to make this happen.
http://www.law.cornell.edu/supct/html/02-102.ZD.html
Scalia believes that there are such legal justification and that the SCOTUS ruling in Lawrence is one of the biggest mistakes that the court has ever made."
Contrary is not the correct word. Additionally is. Scalia's homophobia is secondary. It does not change the factuality of my quote.
Admitting that there is no legal justification for the recognition of same-sex marriage due to the Lawrence decision and not liking that fact are two separate things.
if homosexuality were an illness/disorder, then Scalia's objection to the Lawrence reasoning would override the admission that that reasoning makes same-sex marriage available.
The assertion early in the dissent that homosexuality is a sexual behavior "impossible" to distinguish from sexual practices such as bestiality and incest is quackery. Even a virgin has a sexual orientation and there is no requirement to have sexual experience to marry.
"Admitting that there is no legal justification for denying the recognition of same-sex marriage due to the Lawrence decision and not liking that fact are two separate things."
"the progression of thought displayed by an earlier passage in the Court’s opinion, which notes the constitutional protections afforded to 'personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,' and then declares that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Ante, at 13 (emphasis added).
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, ante, at 18; and if, as the Court [asserts], '[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,' ante, at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution,' ibid.?
Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."
http://www.law.cornell.edu/supct/html/02-102.ZD.html
Prop 8 was entirely within the government's right to define what is and what is not a marriage. That right was upheld in Reynolds V U.S.
Dred Scott v. Sandford was a ruling. Does that mean, following your logic, that we should follow it?
Gay people are gay. That's a scientific fact. Furthermore, as gay people have equality under the Constitution of the United States, there is no rational basis for any form of heterosexism in our law. The 1st Amendment prohibits theocracy and the 14th Amendment prohibits hierarchical citizenship.
"Marriage is between a man and a woman" is a specious statement because it requires the refusal to acknowledge the fact that homosexuality exists. Because homosexuality exists, marriage is also between two people of the same sex.
In Loving, the Court ruled that marriage is a basic human right.
Even so, I find the legal debate to be one of the most compelling and intersting issues of the times and I enjoy debating those legal aspects. This may seem rather cold to those of you whose lives are affected by this and I apologize if my attitude offends anyone. On the other hand, this is a legal debate and it will be won or lost on legal points, not emotional ones. So I feel that it is appropriate for me to discuss those legal points without regard to the emotional impact that rulings may have.
Being called an "anti-gay" shill is profoundly insulting, and ridiculously inaccurate.
I can't find the original complaint, Baker v. Nelson, but here is the court ruling: http://moritzlaw.osu.edu/library/documents/BakervNelson.pdf
If you read both, you'll see that there is no substantial differences between the two complaints.
So why does Olson believe that he can file the same basic complaint as Baker and this time the courts will rule differently?
I think if he is resting his case on Lawrence, he's making a big mistake. I see Lawrence as a rather narrow ruling that States have no compelling interest in regulating private behavior.
It is only a matter of time, and all of these challenges through the courts are really just distraction to give congress the chance to deal with DOMA properly
In the meantime, it is the general public who need to be putting pressure on congress to raise the repeal of DOMA up on congress's priorities list
I'm not so sure. Legal precedent is awfully hard to overcome. If SCOTUS rules once again that the issue of marriage is not "a substantial federal question" that may set the quest for SSM back decades.
"In the meantime, it is the general public who need to be putting pressure on congress to raise the repeal of DOMA up on congress's priorities list"
I did agree with you at one time but with the filing of Commonwealth of Massachusettes v. HHS, I don't think it matters whether Congress repeals DOMA or not. I'm pretty sure that SCOTUS will declare Section 3 unconstitutional.
Mr. Barrington-Wolff;s post really is one sided.
The American Foundation for Equal Rights. Lambda Legal, The National Center for Lesbian Rights and the ACLU LGBT ALL denounced this suit in the beginning and asked others NOT to back it or get on board because of "timing" they think it will move too swiftly. (Cause you know if Gay Marriage becomes legal alot of them are out of jobs) There are many who believe now that one of the main reasons that they want to be involved now is because it will slow down the process.
http://www.back2stonewall.com/?p=6708
Imagine what would happen to their funding if the rights gay people already are afforded by the Constitution are upheld? Is there a conflict of interest here? After all, as long as gay people are in a bad place legally, these groups can claim to be in the position to help. There is already debate about the relevance of the NAACP and Affirmative Action programs. One may think that protection of the bureaucracy and the resulting salaries/access/prestige may be a factor.
"The bureaucracy is expanding to meet the needs of the expanding bureaucracy."
The whole story is that these same groups refused to get onboard, publicly demanded that Boise and Olson drop their suit (the wrong time.... etc.) and generally obfuscated their efforts whenever possible.
Now that the suit looks serious, now that Boise and Olson have proven themselves sincere, all the dontation-funded groups want to jump on the wagon lest they get left behind.
Boise and Olson have said "no thanks" to the groups that bashed the hell out of them when they announced their intentions. They have also pointed out that bringing all these groups on board will do nothing more than delay the case and make it much more expensive to pursue.
Our gay legal and advocacy groups have been, at best, uneven in their success. HRC comes immediately to mind - they cave to our opposition often and vocally. Prop 8 was a study in bad campaign design.
Let's let these guys do their own thing. They're two of the best in the nation, neither Gay, but totally committed to our rights.
If same sex unions are afforded exactly the same rights and responsibilities as heterosexual marriage, it's going to be awfully difficult to argue that gays and lesbians are not being treated equally.
I think it's easy to distinguish between the fountains:
http://www.literacyrules.com/Black%20History/JimCrowPic3.jpg
You can replace "white" with "marriage" and "colored" with "civil union".
The fact is that marriage is a secular institution, legally, in the USA. Atheists can and do marry. There is no religion-involving litmus test to determine marriage eligibility at courthouses. Our law is secular due to the 1st Amendment and the 14th Amendment provides exactly the same rights to gay citizens and are provided to hetero citizens. That includes the right to marry. Gay people are gay so they have same-sex marriages.
You DO have a point when landlords refuse to rent to gay couples or employers refuse to hire gay applicants. Courts rule on actual damages, not metaphorical ones.
My post to Professor Wolff is in regards to the legal merits of the Olson case, not the moral aspects. Personaly, I'm in favor of legalizing SSM but the courts don't care about my personal moral beliefs, nor do they care about yours. You think that you are arguing legally when you continue to cite the 1st and the 14th but you neglect the fact that SCOTUS has already ruled in Baker v. Nelson that the 1st, 14th, and every aspect of the Constitution do not apply to same-sex relationships. Basically SCOTUS has said that this is a States' Rights issue and not a federal issue. You need to find a compelling LEGAL argument as to WHY denial of SSN violates the 14th. You can't just keep saying the 14th, the 14th, and expect to win your case.
Sad, your argument really does make the world sound like a cold and distant place if pair bonding has nothing to do with love and commitment and affection, and only involves sex for the purpose of procreation
And homosexuality is common in Nature. Get over it.
Marriage is "between a man and a woman". Get over it.
I understand it is risky given the predilection of our U.S. Supreme Court to mistreat the Constitution and settled legal principals when Homosexuality is the issue. Nevertheless, the Constitution is clear on this matter and we deserve equality now and not 25 years or more years from now.
Hats off to Olsen and Boise....two straight guys doing the right thing for their Gay brothers and sisters.
Just
Plain
Wrong.
While you may believe that you are correct in saying that there is "the scientific fact" with regards to humans only come in 2 genders the reality is that it is scientific fact (including peer reviewed studies) that homo sapiens come in SIX different genders.
Huh?
Yes. If one ignores the initial false argument that homosexuality isn't a sexual orientation and is impossible to differentiate from various sexual practices such as incest and bestiality and gets to the section where he discussed the O'Connor concurrence's Equal Protection claim, one will see that he considered the effect of recognizing that homosexuality is a class (not a sexual practice but an orientation) and that given Lawrence's decriminalization and the 14th Amendment, there is no justification aside from "moral opprobrium" for the prohibition. The only one he could think of was procreation and he admitted that it fails as a test.
Therefore, the critical issue is to require the court to recognize the scientific fact that homosexuality is a non-disordered sexual orientation. This has been known fact since 1956 (Dr. Hooker) and a matter of consensus since 1973. No longer will any of the justices be able to pretend that homosexuality is a sexual behavior rather than an orientation. Given that even virgins have a sexual orientation and there is no requirement that a person have sexual experience to get married, this point is all that matters.
Scalia knows you can't discriminate on the basis of a characteristic if you can't outlaw it.