Ari Ezra Waldman | Don't Ask, Don't Tell | Law - Gay, LGBT | LGBT Rights | Proposition 8

Judicial vs. Legislative Action in 'Prop 8' and 'Don't Ask, Don't Tell'


 Today is an important day. One day after Judge James Ware of the Northern District of California ordered the release of the Perry trial videotapes, the odious discriminatory policy known as "Don't Ask, Don't Tell" (DADT) finally dies. The two developments are related in that they mark important victories for the gay community: those of us who serve our country in silence no longer have to lie about who we are, and the release of the Prop 8 videos will help show the public how empty and hateful the opponents of same-sex marriage can be.

Dadtdiscriminates But, it's worth noting the differences. Despite the successful, yet ongoing facial challenge to DADT organized by the Log Cabin Republicans and litigated by White & Case LLP partner Dan Woods, DADT is dying due to legislative action taken by majority Democrats at the end of the last Congress. Perry v. Brown, on the other hand, is a federal court challenge to California's ban on same-sex marriage, enacted through the state's unique referendum system. Some activists in the gay rights movement are not sure either is the right process. Many think that it would have been better for DADT to be buried under Judge Virginia Phillips's world-wide injunction and declaration of unconstitutionality, and many think that the issue of same-sex marriage should be put back in front of the voters in 2012.

What are the merits or disadvantages of legislative versus judicial action in the gay rights movement?


As I have written before, the most effective strategy in the search for civil rights is almost always a dual strategy in legislatures and in the courts. Progress in one influences progress in others, as Log Cabin Republicans v. United States likely did with the legislative repeal of DADT. But, we might be at a different stage today had we not taken the path we did.

The DADT Repeal Act is a great thing, but it leaves certain questions unanswered. And despite Dan Woods's almost constant attempts to score cheap political points against President Obama in his comments to the media, his litigation could accomplish much. As Lambda Legal's Jon Davidson noted yesterday in The Huffington Post, "[n]o sexual orientation anti-discrimination protections have been adopted into law by Congress, an executive order or military regulations. The same-sex partners and spouses of lesbian, gay, and bisexual service members and veterans largely continue to be denied rights and benefits provided to heterosexual service members' spouses."

What's more, we can probably expect future litigation from those who were discharged under less than honorable circumstances under DADT -- dishonorable and bad conduct discharges are not only stains on veterans' records, but are also barriers to future employment. Many who were discharged lost benefits and pensions and there remain questions as to the ability of less than honorable discharges to rejoin the service. A broad decision from the Ninth Circuit could have addressed these issues.

Perhaps more importantly, a decision from the Ninth Circuit could have added precedent on the standard by which federal courts will review state action that discriminates on the basis of sexual orientation. Thanks to President Obama, it is the federal government's policy that intermediate scrutiny is the proper standard, but enshrining that view in an appellate court decision may have more lasting impact on the future success of gay rights litigation.

And, yet, legislative repeal has certain advantages. It protects repeal from the tired canard that a few unelected "activist" judges overturned the will of the people and it makes clear that Congress made particular findings that being gay is irrelevant to our ability to serve our country honorably.

A similar back-and-forth has been simmering in the same-sex marriage context. While the Perry litigation is winding its way through the courts -- delayed and detoured by a question certification to the California Supreme Court, a claim that the district court judge was biased, and a motion to release the trial videotapes -- some activists want to bring the issue back to California voters in 2012. They say that majorities now favor same-sex marriage and that the Prop 8 case may get to the Supreme Court too early -- before intermediate scrutiny gains a foothold at the appellate level and before the membership of the court changes.

I share none of these concerns. Another round at the ballot box allows anti-gay forces to raise the same scare tactics and outright lies that helped them win in 2008, something that the truth-seeking trial process does not allow. Winning at the ballot box could moot Perry, which itself offers a great opportunity to clarify the sexual orientation standard of review. And, Perry is well-funded and well-litigated and well-managed, headed by capable advocates at the American Foundation for Equal Rights and the litigation team of Ted Olson and David Boies.

What do you think? Is one method -- legislative versus judicial -- that is better than the other?


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.

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  1. In the instance of Prop 8 the Perry case is the way to go. It may very well fall on standing, leaving a precedent at the trial level. If it doesn't fall on standing, it might be struck down in CA-specific way, i.e., it violates the 14th amendment to create two classes of gay couples -- those married before 8 who remain married and those after who cannot marry. (Ari, that seems very plausible to me since we are talking about a fundamental right and not a zoning change or something else "grandfathered in". Am I right there?)

    Posted by: Chris Gable | Sep 20, 2011 11:23:32 AM

  2. In other states other ways make more sense. Offensive strategies for the next two-ish years: the ballot in ME and OR; legislature in MD, IL, HI, DE, RI, WA; the courts and the legislature in NJ; winning defense at the ballot turned into offense in the MN legislature.

    Posted by: Chris Gable | Sep 20, 2011 11:30:44 AM

  3. The problem with legislative victories is that they can be easily reversed as soon as the Republicans regain power as we are seeing in New Hampshire. And they are several Republican presidential candidates who want to reinstate DADT if elected. In my opinion the sooner we get these cases before the Supreme Court the better. I beleive by 2013 we will have a Republican President and Senate and the court will get a lot more conservative given the ages of the more liberal members.

    Posted by: ken | Sep 20, 2011 11:36:17 AM

  4. I don't think we'll lose the Senate or even the Presidency - 242 EVs are states that haven't voted for a GOPer since 1988 (the states that didn't vote for Obama - plus NC and IN which were close - total 200) , add to that 20 EVs from Latino-heavy swing states: CO, NV, NM. That leaves just 8 votes that Obama needs from the 76 votes left in OH, FL, VA, IA, NH. The GOP has essentially conceded those 242 votes by proposing the PA split the EVs by congressional district idea and the NE don't split the vote by CD idea. they may not like Obama but can you imagine Ohio voting for a GOPer (all of them said this esp Romney) who told the American auto industry to drop dead? Of these five, based on current trend I think Obama will win OH and IA (bringing him to 286 (or 276 if the PA thing goes through - I doubt it will. Nate Silver has a great piece on how it would backfire on GOPers in suburban Philly districts which is where control of the PA legislature lies), lose NH, and VA and FL are toss ups but wouldn't matter; the magic number is 270.

    Also, the Prop 8 case isn't going to hit SCOTUS, they don't want to rule on it and they won't grant it cert. They will have to take the DOMA cases, but they won't rule on that till 2014 a the current pace.

    Posted by: Chris Gable | Sep 20, 2011 11:55:16 AM

  5. Ken, I believe the supreme court in NH mandated marriage equality, did it not? New York and Vermont are the only two that legislated, the rest did it by judicial mandate. It's harder to overturn legislation than judicial mandates in the states where there are ballot initiatives.

    Posted by: Robert in NYC | Sep 20, 2011 1:10:37 PM

  6. I'll never vote for any Repug, but, NO "it is [NOT] the federal government's policy that intermediate scrutiny is the proper standard" because they REFUSE to apply it to DADT, are STILL insisting that it IS "constitutional," AND are promising to keep defending it as long as the "cheap shot" attorneys for LCR keep trying to affirm otherwise. And, THAT'S "thanks to President Obama."

    Posted by: Michael | Sep 20, 2011 1:26:50 PM

  7. Difficult to say. There are so many factors. There are dangers and opportunities in each approach, not the least of which is the overwhelming superiority our opponents have in numbers and cash.
    I think we've done all we can on the political front, until after the 2012 elections, and now that the repubs have the house.
    If it were me, I'd switch to a massive PR campaign - using the money going to HRC cocktail parties - to produce video of gay soldiers, suburban gay couples, and docudramas of our great historical figures: Plato, Alan Turing, Leanardo, Baron Von Steuben, etc...

    Posted by: Wilberforce | Sep 20, 2011 2:21:05 PM

  8. Robert, New Hampshire was done by the legislature, no court mandate. States with ballot initiatives can overturn marriage equality no matter how it's done. But in other states, a new legilature can't simply reverse a judicial ruling the way it can with something passed by the previous legislature. Wish I shared the optimism some of you have about the 2012 elections, but sadly I don't.

    Posted by: ken | Sep 20, 2011 3:46:01 PM

  9. It's nice to 'dream' -- but it's only a 'dream' that the current Supreme Court would find 'sexual orientation' to be subjected to strict scrutiny or even intermediate scrutiny. The 'dreamers' focus on Justice Kennedy, but that just isn't going to happen. There is serious danger that the Supreme Court will reverse the decision in the Perry-Proposition 8 case, and that could set back for decades the ability of courts to protect gay citizens. Yes, legislatures in the Northeast, West Coast and maybe occasionally in the Midwest may pass pro-gay rights laws (domestic partnerships / civil unions, anti-discrimination laws, etc), but gay citizens in at least half of the states (the South, the Southwest, the Southeast, other parts of the Midwest) won't see any positive legislative developments for 10 - 20 years, if then (example: Alabama & Mississippi). If the Supreme Court uses the Perry-Prop 8 case to reject any heightened standard of judicial review for gay citizens, then the courts in these Southern and other similar states will be much less able to protect us.

    Posted by: MiddleoftheRoader | Sep 20, 2011 5:14:30 PM

  10. "Another round at the ballot box allows anti-gay forces to raise the same scare tactics and outright lies that helped them win in 2008"

    We might get that in CA with a possible repeal of the recent FAIR Education Act.

    Posted by: Jeff | Sep 20, 2011 9:04:47 PM

  11. I don't spend a lot of time wondering what is the best way. I try to spend time and energy supporting every way to return and advance LGBT rights. Sometime it looks like civil disobedience, sometimes it looks like ballot initiative campaign, sometimes a rally. We would be better off here in CA if we (the LGBT community) stopped criticizing each others contributions and turned to face the real opposition in our own most passionate ways.

    No-one has a crystal ball to see what way was effective until history has been written. The Olson-Boies case was roundly criticized at its outset, it is arguably the most positive contribution to LGBT rights that is going on today(but it could turn out really badly in the end with SCOTUS). Folks who cried out against a 2010 ballot initiative in CA claiming that 2012 was THE year to do it, have reassessed and have abandoned that effort. None of this would be possible if a few states or city/counties hadn't been able to provide marriage licenses in the past ten years.

    None of us know the best way, so I encourage every way that people can muster to fight for deeper equality for the LGBT movement.

    Posted by: Sean Bohac | Sep 21, 2011 2:36:47 PM

  12. Can we have it both ways? Or is, for instance, the legislative repeal of DADT, fatal to the principle of 'ripeness'? Repeal removes the immediate possibility of harm, but does nothing to protect against future implementations of prejudice. Once a lawsuit is 'ripe', can it lose 'ripeness'? There are very definite advantages to both approaches.

    Posted by: Maurice | Sep 21, 2011 3:34:49 PM

  13. Judicial is the way to go - to leave decisions about Minority Rights in the hands of the Majority is totally against true Democratic principles. Your Constitution says "All men are created equal" ... that cannot be overturned by a current mob mentality ...

    Posted by: Bodhi | Sep 21, 2011 7:56:57 PM

  14. I'd like citations to "Dan Woods's almost constant attempts to score cheap political points against President Obama in his comments to the media," please. As former General Counsel of Log Cabin California, I've been following this litigation very closely since its inception - you know, when so many of our "gay brothers and sisters" pooh-pooed it - and wonder if Mr. Waldman isn't instead referring to the gay left's efforts to cover up LCR's work on DADT by lately lauding legislation over litigation and engaging in near nonstop fundraising under the guise of "celebrating" DADT's demise. Sorry, Prof, but the only "cheap points" being scored here are in the form of the dollars being raked in by HRC and other outfits that had nothing to do with the DADT litigation but are now shamelessly profiting from it. Where's the Little Red [State] Hen when we need her?

    Posted by: Mike German | Sep 22, 2011 1:00:04 AM

  15. The best way to assure a victory for Perry would be having Scalia and/or Thomas out of SCOTUS while Obama's in office.

    Posted by: Ezam | Sep 22, 2011 2:16:29 AM

  16. @mikegerman: if you look at my comments on LCR v. US on this website over the last year, you will see i have been nothing but supportive of the litigation. so, your comment strikes me as an ill-informed attempt to see dastardly motives where none exist. i urge you not to assume that your republican affiliation is under attack simply by being part of the gay community. as for evidence, andy has done a wonderful job quoting the highly accomplished mr. woods in his LCR and DADT reporting. i refer you to many of mr. woods's comments posted on this site. i dont begrudge LCRers trying to score political points. i just don't think it's the job of counsel, who should remain focused on the law, not politics.

    Posted by: Ari | Sep 22, 2011 11:05:19 AM

  17. I think the Prop 8 people are going to push for the SCOTUS to take that case. They feel with the majority being Conservatives they have a chance to destroy the gay marriages there. I do think they might be in for a big surprise though.

    Posted by: macmantoo | Sep 25, 2011 2:27:18 PM

  18. I hate to say this, but I doubt we will ever win at the ballot box, at least not for several years. All the anti-equality groups have to do is drag up that same "princess ad" where the little girl tells her mom she learned in school that she could marry a girl. It sunk us in CA and did the same in ME. Marriage equality evokes too much emotion. However, the courts take the emotion out and make decisions based on legal precident. Law suites are currently the best way to win.

    Posted by: Nicole A | Sep 30, 2011 7:24:30 PM

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