Gay leaders not happy about federal Prop 8 challenge. So what?

 Friday May 29, 2009  | Marriage Rights

Yesterday, I wrote about Theodore Olson and David Boies, and their planned federal challenge to Proposition 8. Already, the leaders of nine prominent gay advocacy organizations, including Lambda Legal, HRC, Freedom to Marry, GLAD, and the ACLU have released a publication critical of the case. In the document, entitled Why the ballot box and not the courts should be the next step on marriage in California [pdf], the coalition says:

Since we lost Proposition 8 just six months ago, and since a ballot initiative to repeal is likely to require a huge investment in time and money, it is tempting to at least try a federal lawsuit first. But it's a temptation we should resist.
[. . .]
Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.

The core of the group's worries is that if a federal challenge were to fail — and they seem to think that it will given the conservative makeup of the current Supreme Court — bad legal precedent will be set that would negatively affect future attempts to win marriage equality.

While the concern is legitimate, I am uncomfortable with 'strategy' displacing the rights of individuals to bring their grievances to court. The plaintiffs believe that California's actions have harmed them, and they should be free to pursue whatever legal remedies are available without worrying about the potential ramifications for "the cause". Pressuring the very individuals whose rights these organizations purport to protect feels unseemly.

Further, the concerns the groups have may never materialize. It could take more than two years before this case makes its way to the US Supreme Court, well past Equality California's goal to place the issue back on the ballot in 2010. A vote to overturn Proposition 8 would render the case moot, killing it before it even makes it to the Court.

I fear that the real source of the organizations' disapproval is their discomfort with an old, straight, white man potentially succeeding where they thus far have not. But old, straight, white men are the ones who make up the Supreme Court — with apologies to Clarence Thomas who only votes like an old, straight, white man, and Ruth Bader Ginsberg to whom only 3 of the 4 criteria apply. But the unfortunate truth is that claims raised by old, straight, white men resonate with the Court, especially when they come from old, straight, white men who have been before them 55 times already as Olson has.

The gay community is not a monolith; we are filled with different insights and opinions, and we sometimes disagree. I can respect the Elite 9's strategic plans, but I do not believe it is appropriate for them to speak publicly against the efforts of others in our community. We have succeeded most when we have taken multiple approaches to the same problem, and I do not see how quashing alternative strategies will advance our mutual goals.

What do you think? Is Olson and Boies's case ill-timed, or should they continue with their litigation? Let me know in the comments.



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Discussion

Do you think they have a legitimate chance to win at the Supreme Court level? It seems like the groups you mentioned are pretty sure they'll lose.

- Marcus Beck, 05/29/09 at 4:46 pm

I think that the case that has to control the Court's ruling is Romer v. Evans, which dealt with a Colorado constitutional amendment from 1992 that said, essentially, that no law could ever be passed to provide protections or rights to individuals on the basis of their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." The Court struck it down for its bald animus against LGB individuals and the fact that it prevented them from using the political process.

I feel Proposition 8 does the same thing. By using a constitutional amendment to stop the passage of a law, it means that California gays and lesbians cannot ask their legislatures for marriage rights, nor can they petition the courts for relief. Instead, their only hope is to re-amend the constitution. The Court does not look too fondly at attempts to hamper the political process.

Now, whether the Court is truly capable of an impartial reading of Romer v. Evans is questionable. There's likely no court in the country more politicized than the US Supreme Court. But Olson is skilled in appellate advocacy and knows the makeup of the Court very well. If he is confident that he will succeed, I am inclined to believe him. I fear my guess is as good as anyone else's at this point.

- Brian Cavner, 05/29/09 at 4:59 pm

This is a fight that must be fought on every front. We need an aggressive campaign to overturn Prop 8 at the state level in California, but if THIS lawsuit succeeds same-sex marriage bans will be overturned nationally. Those who say the suit doesn't have a chance miss the point -- justice always has a chance, and the good that could be achieved is worth the cost and risk.

- Gary Schor, 05/30/09 at 5:13 am

With all due respect to diversity of approach in achieving social change, there is good reason for sound, coordinated strategy when filing in Federal court. Adverse rulings can echo for decades.

The LGBT legal community has worked on these issues for decades. There is a coordinated national strategy already in place. How would the Southern Christian Leadership Conference and Dr. Martin Luther King Jr. have felt if two white corporate lawyers had decided to file in Federal court on their behalf, after Selma and the March on Washington, with no notice or consultation? This is no different. For Olson and Boies to helicopter into this issue now that there's momentum in our direction smells of raw opportunism, and the willingness to put personal profile ahead of solid strategy.

- Leo Schuman, 06/02/09 at 4:05 pm

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