Thursday, May 28, 2009

Making a Federal Case Out of It

Two unlikely allies — Theodore Olson and David Boies, who last faced off over Bush v. Gore in 2000 — are working together to take California’s Prop 8 to federal court.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court. While neither man claimed any special connection to the gay community — they are working “partially pro-bono,” Mr. Olson said — both said they had been touched by the stories of the same-sex couples unable to marry in California.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.

“I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.

While I appreciate the sentiment and I am grateful to have such high-powered voices raised in support of marriage equality, I can’t help but wonder a couple of things. It’s not as if this is the first time someone has suggested going through the federal courts to challenge the host of federal rules and laws — including the Defense of Marriage Act (DOMA) — that have been enacted over the years. But a lot of the gay-rights groups have learned something from watching what happens when laws governing such things as civil rights or abortion rights have been dealt with through the federal courts rather than at the local or legislative level. It hands the opponents of such rights the cudgel of “outside agitators” or “activist judges” which makes for screaming headlines and talk-radio resentment against the all-powerful federal government riding roughshod over states’ rights, and in some cases it would tear up years of grassroots efforts by people who have been working to craft local acceptance or overturn state laws.

Such a suit also runs the risk of being lost. Popular opinion may be shifting towards acceptance of marriage equality, and several states such as Maine and Vermont have passed laws to make same-sex marriage legal, but in front of a still-conservative Supreme Court, the outcome could be different. Mr. Olson, however, seems to think that the Court could be persuaded.

Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”

That may be, but two things come to mind. First, the example of Roe v. Wade shows that just because the Supreme Court ruled in 1973 that a woman’s right to choose was in the Constitution, the ruling obviously did not end the debate or the lawsuits. Neither, for that matter, did Brown v. Board of Education end school segregation in 1954. An argument could be made that the Supreme Court in both cases actually set back the causes they were supposed to help by fueling resentment against the federal government and its sledgehammer approach. The same thing could happen with marriage equality. Second, and this is showing a bit of tin-foil-hat paranoia, it occurs to me that the motive behind this suit could be to force the issue into the docket of the Supreme Court with the hope that it will lose, thereby setting back gay rights. I hasten to add that I am not accusing either Mr. Olson or Mr. Boies of conspiring to destroy the case for marriage equality by feigning to help it, but I can’t help but wonder where they were when Prop 8 was on the ballot a year ago.

The lesson of Roe v. Wade is that sometimes it’s better to work to win your case on a person-to-person, state-by-state level rather than get a sweeping pronouncement on a federal level. If there are federal laws that need to be repealed such as the Defense of Marriage Act or enacted such as the Employment Non-Discrimination Act (ENDA), then let us work to do so through the legislative process. If the states can provide for marriage equality, then let’s work at that level rather than a cookie-cutter/one-size-fits-all approach, and not provide the anti-gay forces with the ammunition to battle against judicial rulings (and with irony working on all cylinders, go to court) and claim that “the people” had no say in the matter. It may take a little longer and be harder to achieve than hoping for a 5-4 ruling from the Supremes, but no one can say that the fight isn’t worth it.