Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.
Activists at the organization Equality California (EQCA) announced on April 4 that they are beginning an outreach campaign to gauge the interests of gay Californians on putting marriage equality on the ballot in 2012. According to EQCA's press release, the organization will "survey its membership, hold 10 town halls across the state and an online town hall, conduct a poll of likely 2012 voters, consult with political experts, coalition partners and engage with its members and the LGBT community." Whether EQCA runs the possible campaign is not my (present) concern. The more important question is whether we want the existence of our rights to be subject to a majority vote.
Let's assume that if marriage equality goes on the ballot in 2012, we will win and same-sex couples would be allowed to marry in California. As a matter of law and legal policy, is that a good idea? What do you think?
A short discussion of some factors to consider AFTER THE JUMP...
Putting marriage equality on the ballot has certain advantages. The Prop 8 case — Perry v. Brown — is progressing through the judiciary like a sedated tortoise and there is no indication that the Ninth Circuit's final decision, which will likely be appealed to the Supreme Court, will be handed down before 2012. What's more, if the Court recognizes the Prop 8 Proponents' standing, the merits case — the question of marriage equality in California — will have to go up the federal court ladder again. That could take us into 2013 or 2014.
And, during that time, the stay of Judge Vaughn Walker's ruling will remain in place. The Ninth Circuit's decision to keep the stay and not allow same-sex couples to marry while Perry moves at its exceedingly slow pace ensures that as long as Perry is marriage equality's great hope, same-sex couples will be harmed by the stay.
But, putting marriage equality on the ballot again transforms our rights into a ping pong ball being swatted by competing groups. Participating in the political process for our rights gives us whip lash: we can marry, then we cannot, then we can (again, assuming we win in 2012). Who's to say there will not be another anti-gay ballot initiative in 2016? Still, as an argument for giving up in the political sphere and putting all our eggs in the judicial basket, that view is like declining to leave the house in the morning because it may rain later. Just because using the political process to gain our rights leaves us open to a future political campaign to take away our rights does not mean we avoid trying.
The gay rights movement has had its greatest success when it marries a political strategy — in state legislatures and in Congress and at the initiative level — with a legal strategy that uses impact litigation to sue for our rights. The strategies feed off each other, putting pressure on decision-makers in both realms: An increasingly successful political strategy gives judges cover for pro-marriage equality decisions since judges, for good reasons, are generally loathe to go too far out on a limb in controversial cases. And, a successful legal strategy empowers voters and legislators to take so-called "brave" political steps knowing they have the imprimatur of the courts.
Nor is this a choice between marriage equality in California and marriage equality nationwide. While Perry could possibly result in a merits hearing at the Supreme Court, that possibility is unlikely given the standing problems of the Prop 8 Proponents. It would seem that victory in Perry is more likely to mean the freedom to marry in the Golden State, rather than across the country.
There is, however, a deeper problem with returning to the ballot box in 2012. Should the gay community concede that its rights must be handed down by and subject to the approval of a majority of voters? My fundamental right to marry the one I love is neither incumbent upon finding a good political climate nor subject to the whims of voters whose rights have never been up for a vote. Yet, to put marriage equality on the ballot in 2012 accepts that we must beg for recognition like Oliver Twist, trembling, bowl in hand, asking for more.
Still, while a victory in 2012 — something we have assumed for the purposes of this discussion, but an eventuality that is far, far, far from foregone — would bring marriage equality to California before Perry, that victory may be temporary due to the fickle nature of politics. But, giving up in the political sphere hardly seems acceptable.
Also, a victory at the ballot box in 2012 would moot Perry v. Brown in all aspects. Legal "mootness" refers to a lack of a "case or controversy" — a real dispute — for a court to consider. With respect to federal courts, a "case or controversy" is a prerequisite for jurisdiction, i.e., to hear a case. Since a successful 2012 ballot initiative would bring marriage equality to California, there would be no point to have further legal proceedings on the issue of whether it is constitutional to deny those marriage rights — the issue in Perry. Depending on the timing, we would never get a final decision on the future standing of proposition proponents and, more importantly, we would most certainly not get a final decision on the irrationality of any denial of marriage rights from the gay community. In that way, victory at the 2012 ballot could be seen as short-circuiting a long-term legal strategy whose ultimate and eventual goal is to obtain judicial precedent for the recognition of our fundamental right to marry nationwide.
What do you think about putting marriage equality on the ballot in 2012? This column might have you given you whiplash, as I bounced back and forth with arguments on each side. But, it is a conversation our community must have. I eagerly await your thoughts, dear Readers!