AP: Federal Prop 8 Challenge Could Set Legal Precedent for Years
The AP's Lisa Leff on the Olson/Boies federal Prop 8 challenge set to begin Monday:
The case will decide a challenge to California's gay marriage ban that was approved by voters in 2008, and the ruling will likely be appealed to the U.S. Supreme Court. How the high court rules in the case could set the precedent for whether gay marriage becomes legal nationwide.
"This could be our Brown vs. Board of Education," said former Clinton White House adviser Richard Socarides, referring to the 1954 Supreme Court decision that outlawed racial segregation in schools and other public facilities. "Certainly the plaintiffs will tell you they are hoping for a broad ruling that says that any law that treats someone differently because of sexual orientation violates the U.S. Constitution."
The case marks the first federal trial to examine if the U.S. Constitution permits bans on gay marriages, and the challenge is being bankrolled by a group of liberal Hollywood activists including director Rob Reiner and producer Bruce Cohen.
The judge:
Presiding over the case is U.S. District Court Chief Judge Vaughn Walker, a Republican named to the bench in 1989 by the first President Bush. Walker, who has a reputation as an independent thinker, was randomly assigned the lawsuit, put it on a fast-track to trial and has said he thinks it raises serious civil rights claims. During a pretrial hearing in August, the judge pointedly scolded Schwarzenegger for remaining neutral "on an issue of this magnitude and importance."
Walker says the case is so important that the court has taken the rare step of allowing videotaping of the proceedings so the public can watch. The trial, scheduled to start Monday, will air on YouTube every day.
"This could be our Brown vs. Board of Education," said former Clinton White House adviser Richard Socarides, referring to the 1954 Supreme Court decision that outlawed racial segregation in schools and other public facilities.
This could also be our Dred Scott.
Posted by: Stevious | Jan 8, 2010 10:58:19 AM
Yes, this is a high stakes move. If the Supremes go against us, we won' see gay marriage nationally recognized for a generation or more.
Posted by: JimSur212 | Jan 8, 2010 11:04:46 AM
@Stevious
Well...our Plessy v. Ferguson would be the more correct precedent.
Posted by: Chitown Kev | Jan 8, 2010 11:05:07 AM
no pun intended, per Stevious's comment, this court case fills me with dread. i actually feel my heart beating faster whenever i read about it, and not in a good way. it's bad enough, for me, when individual states ban gay marriage, or take away our rights, but i have a feeling the Supreme Court is just itching to do the same, and that would be that. i live in Connecticut, where gay marriage is legal, and where there have been no problems with it at all, but that could all change if the SCOTUS does indeed rule against it.
i'm very slightly cautiously optimistic about the Olsen/Boies case, but i just sense momentum in the wrong direction.
Posted by: casey | Jan 8, 2010 11:08:12 AM
I have to admit I also was suspicious when I first heard about this lawsuit - and I still am concerned in the back of my mind. However, I truly believe this is a matter of fairness, equality and basic rights which shouldn't be subject to the manipulations of the ballot box. We have excellent lawyers and a fair judge. We're also getting this on youtube, so the idiotic arguments of the anti-equality folks will be exposed in full view. I think we have an excellent opportunity here, and am happy we are taking it. Nothing ventured, nothing gained. If we lose, so what. I don't believe we will be any worse off. A lost at the federal level isn't going to prevent states from having marriage equality in the future - and the Supremes aren't stupid, I really don't think they'll rule against us if we win in both the trial and appellate courts. If I were them, I wouldn't want to be on the wrong side of history.
Posted by: Mike | Jan 8, 2010 11:20:13 AM
We are screwed. They wouldn't be doing this if there was even the slightest chance of a gay-positive outcome.
Posted by: Roscoe | Jan 8, 2010 11:20:23 AM
There is no time like the present. Waiting for the SCOTUS to be stacked in our favor may never happen in my lifetime. All in all, if this doesn't happen, I see us taking it to the streets of America. With Obama being such a lame-duck president that even Nancy is publicly making snide remarks against him, we really don't have anyone on our side. I pray that that is not the case, but if it is...get prepared; this is just a ticking time bomb waiting to explode.
Posted by: Keith | Jan 8, 2010 11:25:05 AM
Actually, the case says that CA residents were denied due process and had their 14th amendment rights violated. If the case succeeds it will only overturn the Prop 8 amendment, resulting in the case going back to the CA supreme court. This could take the better part of a decade to resolve.
Posted by: anon | Jan 8, 2010 11:51:41 AM
Going to the federal courts would be a viable strategy if 1) we had a reasonable chance of prevailing there and 2) it would not hasten the efforts to add an anti-gay Marriage Amendment to the U.S. Constitution. Any attempts by the federal courts to make marriage a federal right would unleash a crushing backlash against us through an anti-gay marriage constitutional amendment. The only thing that has stopped it for the time being is a Democratic congress. This time next year, there is a very good chance we will have a Republican Congress that will likely be calling for an federal anti-gay marriage. IT only takes 38 states to ratify an amendment, and 30 state constitutions already ban gay marriage, and 10 ban it by statute. Voters rejected same-sex marriage in all 31 states where it has been on the ballot. Cowardly politicians know this and will vote accordingly. Thus, there is a fair chance that at least 38 states would ratify such an amendment, which could almost snuff out same-sex marriage nationwide for generations to come.
Posted by: Javier | Jan 8, 2010 11:52:52 AM
The best analogy is to Bowers v. Hardwick and then Lawrence v. Texas which overturned it. There were 17 years between the two.
Now, assuming the time for a reversal wouldn't be shorter on this issue given how society has advanced since 2003, how long do you think it will take before liberals have a solid majority on the Court and the HRC types would feel more comfortable bringing this case? My guess is, a long time -- and that depends on the Democrats keeping the Presidency for probably a decade or more.
Basically I don't think we have a whole lot to lose here, and we've got a ton to gain.
Posted by: Pender | Jan 8, 2010 11:55:50 AM
To everyone who would sabotage this federal challenge because of their fear: You would be doing exactly what the religious bigots want you to do; live in fear.
Fuck those religious bastards! I can't wait to give them hell. Equal protection under the law will be the vindicating reward for their attacks against us. They deserve all of the negativity that they have coming to them! We're going to bankrupt the multi-million dollar anti-gay money laundering industry. Contemporary religion can't survive without us as their scapegoats.
Rise up against these religious scumbags, and make them pay!
Posted by: FlexSF | Jan 8, 2010 12:03:13 PM
"Fuck those religious bastards! I can't wait to give them hell."
I assume that in your mind, "giving them hell" means losing a federal court case that would establish a crippling precedent for possibly decades against our causes, not just same-sex marriage. Any decision from this US Supreme Court is not gonna be in our favor. At best it would be a 5-4 decision for our side, most likely 6-3 or 7-2 against us.
Posted by: Javier | Jan 8, 2010 12:18:19 PM
What a bunch of Debbie Downers...Do all of the negative comments come from HRC employees? Some of you guys need to stop being such pussies.
Yes. This is risky.
But Lawrence v. Texas was decided by this same conservative court. So Javier's opinions notwithstanding, it's possible that we could actually prevail. Former Solicitor General Ted Olson (an arch conservative) probably knows the current Supreme Court Court justices better than those of us commenting. This isn't some type of Manchurian conspiracy...He thinks he can win.
In any case, it's going take years for this case to be decided before it could make its way to the US Supreme Court, no one can say with certainty what the make up of the court will be at that point, or what a vote on a particular issue might be.
Finally regarding a constitutional amendment...If the conservatives couldn't pass an amendment with GWB in the White House and Republican control of both the Senate and House, it's doubtful that it will happen now (or anytime soon). The public has come a long way on this issue in a pretty short amount of time. There isn't the same fear/outcry fueling an amendment today.
Posted by: Guy from DC | Jan 8, 2010 12:50:25 PM
I'm really pissed off today. There are so many ill informed members of our community (including commentators on this blog) who are making assessments about the potential for success of this Pro 8 lawsuit, and you don't know what the hell you're talking about.
I am an Ivy League educated attorney. I work at one of the largest and most prestigious law firms in the United States, where I represent some of the largest companies in the United States in a wide range of litigation and transactional matters. My firm has successfully represented many clients before the 9th Circuit District Courts, the 9th Circuit Court of Appeal, and the United States Supreme Court. We make it our business to understand the political temperature of the courts, and biases of the judges and justices involved.
If you look at the decisions of the U.S. Supreme Court since Chief Justice Roberts took the helm, you will notice a significant ideological shift to the right. This is the worst possible time to initiate a federal gay rights lawsuit. There is no possible way that the current United States Supreme Court would support same sex marriage. At best, there might be a 5-4 decision against same sex marriage, but that would be a best case scenario.
If the U.S. Supreme Court ultimately rules against the right of same sex couples to marry, this will have profound implications for the entire country. Same sex couples could lose the right to marry in the United States for the foreseeable future or at least until the ideological make-up of the U.S. Supreme Court changes, and the perfect case has the opportunity to work its way through the legal system. This could take decades. If you draw comparisons to Black civil rights cases, it could take 100 years or more. (I’m not kidding.)
I know that a lot of you feel emotional about this issue. But being emotional and ill informed is not going to sway the federal courts. They simply don’t give a damn about your emotions or personal opinions. It’s about the law. Since this case involves a matter of first impression, the fedreal courts have broad latitude to decide this issue.
This Prop 8 lawsuit may be well intentioned, but it is a horrible idea being perpetuated by guys with oversized egos fueled by emotional activists who do not understand the intricacies of the federal court system. The bottom line is that we are screwed. We are all on a train that is about to crash, and, unfortunately, most of our community does not realize that we are headed for disaster. Wake up people! Please don't believe the hype that you hear about this Prop 8 lawsuit.
Posted by: OnyxEsq | Jan 8, 2010 1:33:24 PM
"But Lawrence v. Texas was decided by this same conservative court."
Wrong, Justices O'Connor, Souter and Rehnquist, who made up Lawrence majority, are no longer on the Court. Instead, now we have Sotomayer, who we assume is progressive on gay rights but we really dont know yet; and, Roberts and Alito, who were know will reliably be against gay equality. So, we have a net deficit of at least 1 less pro-gay justice, and if Sotomayer disappoints, two.
Secondly, Lawrence v. Texas, was about criminal sodomy, the right to put people in prison for a long time for private, consensual, non-commercial sex. Lawrence was not about government affirming and sanctioning same-sex relationships; it was merely about them allowing them to resist without imprisoning those who engage in them. Same-sex marriage is about government support and affirmation of homosexual relationships. Does government HAVE to recognize and affirm same-sex relationships is the question at issue. It is one thing for Justice Kennedy to say people should not be imprisoned for having sex with a person of the same sex, quite another to say that the government MUST view homosexual relationships as marriage just the same as heterosexual couplings. Almost no constitutional law expert thinks the US Supreme Court is anywhere closing to say YES to that question.
Posted by: Javier | Jan 8, 2010 1:56:12 PM
Well Onyxesq and Javier - For some reason IF it is ruled against US / and the VERY Idea of United States of America's idea of Equality under the Law...due to Individual Predjudice...Im all for Rioting,and TAKING A Stand! Being Nice aint getting us anywhere, and when all else fails ie: the Law & Courts....there is NO way Im takin it sitting down.
Posted by: Disgusted American | Jan 8, 2010 3:01:27 PM
I love when a judge like Vaughn Walker says something that is utterly logical and follows-up on that shit. That's their job: to judge when an inequality is present and to change it.
Posted by: Drew | Jan 8, 2010 3:57:28 PM
I predict a REVOLUTION in the US if after waiting for SO long for equal treatment under the law, the courts try and use a technicality to avoid the issue.
Frankly, I'm surprised that there hasn't already been more action taken against churches, etc... basically tax-avoiding hate-groups.
If straight people were paying attn, they would def be much more concerned.
Posted by: stephen | Jan 8, 2010 4:04:04 PM
Talk of rioting and revolution in the context of LGBT issues are, quite frankly, absurd.
It is not going to happen.
Everyone knows it is not going to happen.
Justice Joyce Kennard - the homophobe on the California Supreme Court who laughed in our face at the mere suggestion of rioting over same-sex marriage - was, unfortunately, absolutely right about that. There was no rioting after the court upheld Prop. 8. And there was never any chance that it would happen because the upper-middle class homosexuals who are leading this movement have too much to lose. The lobbyists aren't going to engage in confrontational behavior and go to jail over this.
And LGBT folk have to realize that they lose creditability when they constantly make threats they have no intention of carrying out.
Posted by: John | Jan 8, 2010 4:51:08 PM
Going back a few comments, the way we give the religious bastards hell is: 1) to live openly so they know just how many people their bigotry affects; and 2) (IF you're at that point in your relationship) GET MARRIED. Even if it's not yet recognized in your home state, all the states that currently perform marriages will do it for out-of-staters. The power of knowing you're married; of establishing a verifiable legal relationship with your other half; of being no-shit, no-one-can-tell-you-that-you-aren't-really married; of feeling empowered and legally justified in using the term husband, wife or spouse--all of these things will prove extremely important and powerful to the two of you. Don't postpone your own happiness waiting for a state legislature to change, a court to rule, or a president to emerge from his shell. Do it for yourselves. And as a side benefit, the number of gay married couples gets ever larger, putting a lie to our opponents' claims of impending disaster and exposing their lies for the bigotry that it is. That's how we give them hell--by being ourselves.
Posted by: Gianpiero | Jan 8, 2010 6:15:47 PM
I'm curious. I have made the decision that if we lose this case at the level of the U.S. Supreme Court or if the bigots manage to get Congress to pass the Federal Marriage Amendment, I will move out of the U.S. as soon as I can. Has anyone else made a similar decision?
Posted by: peterparker | Jan 8, 2010 6:32:17 PM
And even in Lawrence v. Texas the Court didn't exactly sanction homosexual sodomy. The court said that the state of Texas had no compelling interest in sodomy being illegal. One thing that Scalia was correct about in his homophobic dissent was that the moajority actually didn't go so far as to sanction it.
@Javier- The Court could, theoretically, sanction same sex relationships and still uphold Proposition 8. That could result in the striking down of all those anti-gay amendments that outlaw same-sex marriage and any legal arrangement that resembles SSM (i.e. DP's and CU's).
And...you know, that would be progress. Not the progress that any of us wants, obviously, but still...
Posted by: Chitown Kev | Jan 8, 2010 7:31:21 PM
Just want to correct two things:
First, Justice Rehnquist joined Justice Scalia's dissent in Lawrence, not the majority opinion. The majority opinion was written by Justice Kennedy and joined by Justices Breyer, Ginsburg, Stevens, and Souter. Justice O'Connor wrote a concurrence, making the vote 6-3.
http://en.wikipedia.org/wiki/Lawrence_v._Texas
Second, an unsuccessful challenge to Prop 8 based on the US Constitution would have no effect on the other states that have legalized gay marriage. That's because even if a federal court decides that the US Constitution doesn't *require* marriage equality, individual states are still *permitted* to adopt whatever marriage law they like. In other words, no one is saying that Connecticut's marriage equality law violates the US Constitution, and the federal courts would have no authority to rule that it does.
Posted by: Andrew | Jan 8, 2010 8:10:45 PM
Andrew...
I'm not, per se, saying that the challenge would have to be unsuccessful. It could be successful and Prop 8 could still be upheld.
Kennedy hinted as much in his Lawrence opinion that "marriage" was a different social institution. Certainly, Lawrence opens a door in that direction, but then again, so did Romer.
The issue in this case seems to be "marriage" as a meaningful social institution. In that case, the Court could pretty much 1) Use intermediate scrutnity(in Romer, they used a heightened level of rational basis) 2.) Find discrimination in terms of how marriage law differently to gay people is applied. 3) Uphold Prop 8 because the state of California has an adequate remedy with the DP's.
Really, this make the NJ case even a little more interesting, that could reach SCOTUS, too.
I think in this case, while the Supremes uphold Prop 8, they strike down all of the other super anti-marriage/DP/CU amendments., leaving the "marriage" portion of the amendments in place.
And the states that have marriage equality could keep it.
Or...they could mandate federal civil unions.
Which would be a loss for california, insignificant in Iowa or, say, Washington, but a big win for, say, Michigan or Florida
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