There has been much discussion, as I have noted before, as to whether or not Perry v. Schwarzenegger should have been brought forward now or at some later date. Perhaps after the retirement of Antonin Scalia. The New Yorker has a lengthy and excellent article on this discussion and when all is said and done, I agree with Ted Olson that it's better to have the current team quarterbacking the issue in federal court than some other litigants with less experienced counsel. Because somewhere, a involving these issues would have been brought and likely brought by less experienced counsel. I would also note that law professors - who seem to be among the loudest naysayers - are not always the best to judge the likelihood of success since many have been in the ivory tower of academia for years and have little real world trial experience. Likewise, for those of us who live in states like Virginia - where gays still lake employment protections even though the majority of Virginians oppose job discrimination - other than through a federal court case striking down the state's "Marriage Amendment" it could be many decades before marriage equality might become a reality. No matter which side of the argument one comes down on, the New Yorker article is a must read. Here are some highlights:*
The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
*
Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history.
*
He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them.
*
If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation.
*
Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states—and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)
*
Nobody seems to be saying anymore, as some skeptics did initially, that Olson was deliberately setting up the gay-marriage movement for a fall. But doubts remain. William Eskridge, a professor of constitutional law at Yale University, and a prominent advocate of same-sex marriage, says that he is now “even more pessimistic” about the lawsuit’s chances, given that, in recent months, voters in Maine approved a referendum overturning a same-sex-marriage law, and the state senates of New York and New Jersey opted not to allow gay marriages. “A question that so evenly but intensely divides the country is not one that should be decided by the courts nationwide,”
*
Yet there is a countervailing story, one that points to an inevitable shift toward acceptance of same-sex marriage. In 1993, few Americans had heard of same-sex marriage. Now some forty per cent of Americans support marriage for gay couples, and more than fifty per cent support civil unions. Many more people condone gay marriage today than condoned interracial marriage at the time of Loving v. Virginia, when only twenty per cent of Americans told Gallup that they approved of it.
*
Patrick Egan, a political scientist at New York University, and Nathaniel Persily, a law professor at Columbia University, who together have studied public opinion on gay rights, believe that in five years a majority of Americans will favor same-sex marriage—the result of generational replacement and what Persily calls “attitude adjustment.” When people change their mind on this issue, they tend to change it toward marriage equality.
*
Griffin and Olson agreed that federal lawsuits were inevitably going to be filed on this issue, and that gave them a sense of urgency. As Olson told me, “There are millions of people in this country who would like to be married—in California, in Arkansas, wherever. Some couple is going to go to some lawyer and that lawyer is going to bring the case. And that case could be the case that goes to the Supreme Court. So, if there’s going to be a case, let it be us. Because we will staff it—we’ve got fifteen, twenty lawyers working on this case and we have the resources to do it, and we have the experience in the Supreme Court.” Olson went on, “We’ve all seen people bringing cases in the Supreme Court who don’t know what they’re doing.”
*
In San Francisco, Olson and Boies will be arguing that marriage—and, by extension, the right to marry the person you choose—is a fundamental right. The first part isn’t so difficult. Marriage is one of the rights—along with, for instance, the right to vote, to travel from state to state, and to bear children—that the Court has repeatedly elaborated on and endorsed, though they are not stipulated in the Constitution.
*
Olson and Boies must also convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights. When the Supreme Court decides if a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: “rational basis,” intermediate, or strict. If the court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. (It was by subjecting laws against interracial marriage to strict scrutiny that the Court ruled, unanimously, in Loving v. Virginia.) Strict scrutiny is applied only when a law either interferes with a fundamental right or deals with a so-called “suspect” classification: religion, race, ethnicity, or national origin.
*
If Olson and Boies can convince the Court that the fundamental right of marriage includes the right to marry someone of the same sex, that will get them a long way toward victory.
*
If you’re going to deprive citizens of basic rights, even under a rational-basis test, you have to show that it’s of benefit to somebody.” Olson and Boies will aim to show that the motivation for Proposition 8 could only have been animus — a rationale that the Court does not look kindly on. In the 1996 case Romer v. Evans, for instance, it ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.
*
So far, Judge Walker, who was appointed to the federal bench in 1989, by George H. W. Bush, has made it clear that he has an eye toward both the high court and history.
The Olson-Boies team hopes for a ruling that will transform the legal and social landscape nationwide, something on the order of Brown v. Board of Education, in 1954, or Loving v. Virginia, the landmark 1967 Supreme Court ruling that invalidated laws prohibiting interracial marriage.
*
Olson’s interest in this case has puzzled quite a few people. What’s in it for him? Is he sincere? Does he really think he can sway the current Court? But when I spoke with Olson, who is sixty-nine, in early December, he sounded confident and impassioned; the case clearly fascinated him both as an intellectual challenge and as a way to make history.
*
He said, “Separate is not equal. Civil unions and domestic partnerships are not the same as marriage. We’re not inventing any new right, or creating a new right, or asking the courts to recognize a new right. The Supreme Court has said over and over and over again that marriage is a fundamental right, and although our opponents say, ‘Well, that’s always been involving a man and a woman,’ when the Supreme Court has talked about it they’ve said it’s an associational right, it’s a liberty right, it’s a privacy right, and it’s an expression of your identity, which is all wrapped up in the Constitution.” The Justices of the Supreme Court, Olson said, “are individuals who will consider this seriously, and give it good attention,” and he was optimistic that he could persuade them. (The losing side in San Francisco will likely appeal to the Ninth Circuit, and from there the case could proceed to the Supreme Court.) Olson’s self-assurance has a sound basis: he has argued fifty-six cases before the high court—he was one of the busiest lawyers before the Supreme Court bench last year—and prevailed in forty-four of them.
*
If the Perry case succeeds before the Supreme Court, it could mean that gay marriage would be permitted not only in California but in every state. And, if the Court recognized homosexuals as indistinguishable from heterosexuals for the purposes of marriage law, it would be hard, if not impossible, to uphold any other laws that discriminated against people on the basis of sexual orientation.
*
Plenty of gay-marriage supporters agreed that it was smarter to wait until the movement had been successful in more states—and, possibly, the composition of the Supreme Court had shifted. (During the last year of a second Obama term, Scalia would be eighty-one.)
*
Nobody seems to be saying anymore, as some skeptics did initially, that Olson was deliberately setting up the gay-marriage movement for a fall. But doubts remain. William Eskridge, a professor of constitutional law at Yale University, and a prominent advocate of same-sex marriage, says that he is now “even more pessimistic” about the lawsuit’s chances, given that, in recent months, voters in Maine approved a referendum overturning a same-sex-marriage law, and the state senates of New York and New Jersey opted not to allow gay marriages. “A question that so evenly but intensely divides the country is not one that should be decided by the courts nationwide,”
*
Yet there is a countervailing story, one that points to an inevitable shift toward acceptance of same-sex marriage. In 1993, few Americans had heard of same-sex marriage. Now some forty per cent of Americans support marriage for gay couples, and more than fifty per cent support civil unions. Many more people condone gay marriage today than condoned interracial marriage at the time of Loving v. Virginia, when only twenty per cent of Americans told Gallup that they approved of it.
*
Patrick Egan, a political scientist at New York University, and Nathaniel Persily, a law professor at Columbia University, who together have studied public opinion on gay rights, believe that in five years a majority of Americans will favor same-sex marriage—the result of generational replacement and what Persily calls “attitude adjustment.” When people change their mind on this issue, they tend to change it toward marriage equality.
*
Griffin and Olson agreed that federal lawsuits were inevitably going to be filed on this issue, and that gave them a sense of urgency. As Olson told me, “There are millions of people in this country who would like to be married—in California, in Arkansas, wherever. Some couple is going to go to some lawyer and that lawyer is going to bring the case. And that case could be the case that goes to the Supreme Court. So, if there’s going to be a case, let it be us. Because we will staff it—we’ve got fifteen, twenty lawyers working on this case and we have the resources to do it, and we have the experience in the Supreme Court.” Olson went on, “We’ve all seen people bringing cases in the Supreme Court who don’t know what they’re doing.”
*
In San Francisco, Olson and Boies will be arguing that marriage—and, by extension, the right to marry the person you choose—is a fundamental right. The first part isn’t so difficult. Marriage is one of the rights—along with, for instance, the right to vote, to travel from state to state, and to bear children—that the Court has repeatedly elaborated on and endorsed, though they are not stipulated in the Constitution.
*
Olson and Boies must also convince the Court that Proposition 8 violates the Constitution’s Equal Protection clause by assigning gay or lesbian citizens a different, lesser status with regard to marriage rights. When the Supreme Court decides if a law violates the Equal Protection clause, it engages in one of three levels of scrutiny: “rational basis,” intermediate, or strict. If the court uses strict scrutiny, the law in question will be struck down unless it can be shown to have been “narrowly tailored to further a compelling interest” of the state. (It was by subjecting laws against interracial marriage to strict scrutiny that the Court ruled, unanimously, in Loving v. Virginia.) Strict scrutiny is applied only when a law either interferes with a fundamental right or deals with a so-called “suspect” classification: religion, race, ethnicity, or national origin.
*
If Olson and Boies can convince the Court that the fundamental right of marriage includes the right to marry someone of the same sex, that will get them a long way toward victory.
*
If you’re going to deprive citizens of basic rights, even under a rational-basis test, you have to show that it’s of benefit to somebody.” Olson and Boies will aim to show that the motivation for Proposition 8 could only have been animus — a rationale that the Court does not look kindly on. In the 1996 case Romer v. Evans, for instance, it ruled that a Colorado amendment that excluded gays and lesbians from anti-discrimination laws was motivated by anti-gay feeling, and was therefore unconstitutional.
*
So far, Judge Walker, who was appointed to the federal bench in 1989, by George H. W. Bush, has made it clear that he has an eye toward both the high court and history.
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