(There are Qs of the Day in this post as well.)

Bush v. Gore adversaries Ted Olson and David Boies appeared on Larry King last night to make their case why it's the right time to pursue a federal decision on marriage equality arguing that Prop 8 violates the U.S. constitutional guarantee of equal protection and due process.

[youtube http://www.youtube.com/v/XEx_aPBZtsE&hl=en&fs=1 expand=1]

They present a logical argument on why the Prop 8 ban on marriage equality is wrong, citing that marriage is a basic human right and states should not be allowed to discriminate. For instance, when they appeared later on CNN with John King (transcript isn't up yet), Olson asked whether Dr. Martin Luther King would have stated the country should pursue equality on a state-by-state basis, or that desegregating the schools was a state's rights issue and we'll wait until the people catch up to change matters. BTW, Olsen said that they did consult with LGBT orgs, which all urged them not to pursue this case at this time, but are moving forward using the reasoning that the four couples they represent should not have to wait for fundamental rights based on the U.S. Constitution.

You can't disagree with the merit of these arguments, really. What is causing a great deal of consternation in LGBT organizations is the approach and timing -- the orgs strongly disagree with this case because they feel it is too soon to bring the matter up on a track to be heard by the current U.S. Supreme Court at this time, which is why you see the speedy press release from the coalition of orgs restating its strategy (see my earlier post).

The groups released a new publication, "Why the ballot box and not the courts should be the next step on marriage in California." This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised "Make Change, Not Lawsuits," which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.
This approach has merit as well -- on the basis that incremental change allows people to learn, on a personal basis, that there is no threat to our country or any one else's marriage because gay and lesbian couples simply want the same rights as they do.

OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level it is a direct challenge to this White House. The Obama admin has tried mightily (and ridiculously) to keep this a states' rights issue -- to the point of believing there's no reason to even have to publicly recognize the progress and setbacks.

In my opinion, this is also a part of the motivation behind the Olsen/Boies lawsuit. After all -- how can you have a President of the United States who is a constitutional scholar out there saying "God is in the mix" and tossing off "it's an issue best left to the states"? After all, his parents' relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.

Again, this is a political problem of candidate and President Obama's own making that is now blowing up in his administration's face. I'm not surprised that this is happening; I am kind of surprised it's happening so soon -- but we, the LGBT orgs, and the big brains at 1600 Pennsylvania Avenue do not have the ability to shut down the constant equality questions being bombarded at Robert Gibbs or a lawsuit like this.

I'm not arguing that Boies and Olson are pursuing the right strategic path, mind you, but I understand the sentiment and frustration behind it -- I'm just tossing this out there as a discussion point, since we are all tired of the disingenuous BS coming out of the Obama White House through the clownish, embarrassing dodges of Press Secretary Robert Gibbs nearly every day. Also, we don't see any of the LGBT orgs criticizing the non-answers and evasive maneuvers coming out in the name of our "fierce advocate" at these pressers -- do you think this silence would have occurred under Bush?

So this is where we are, and it's a complete mess. Anything remotely representing a planned strategy is obliterated; now everyone has to deal with the reality at hand, including the fact that the most recent polls show a drop in support for marriage equality from last month (see chart below), a result quickly picked up by the fundies. Of course looking at the progression over the years, the change in level of support has risen dramatically, which underscores the fact that those who oppose equality are going to lose this battle in the long run:

But, there's an obvious question lurking there that represents the underpinning of the federal lawsuit -- why do polls matter at all, other than for political cover? Everyone participating in this kabuki dance knows we're dealing with a fundamental right -- and civil rights should never be determined by polls, the ballots or politicians. This will be determined by the U.S. Supreme Court.

And about all of the questions about who's funding the Boies/Olson case. I've heard that it's prominent wealthy progressives bankrolling the American Foundation for Equal Rights, so that would deep-six the Olson right wing conspiracy stories.

But if you think about it, this issue of who is funding the fed lawsuit is kind of irrelevant on some level. The situation, regardless of political persuasion, is really about whether the goal of marriage equality is seen as an incremental process leading to a positive resolution, or, as with prior civil rights movements, seen as a fundamental constitutional issue because 1) the states will never consistently settle the matter, and 2) in the absence of a federal decision, in layman's terms, you simply cannot have a civil right in the U.S. that one loses based on driving across the wrong state line.


So it's a very difficult series of Qs of the day for you --

* is Boies' and Olson's rejection of the current legal strategy supported by our orgs a tactical error for the marriage equality battle? It represents a "Hail Mary" approach, polls and pols be damned, to solve the patchwork problem of uneven equality around the country all at once, taking the moral high road. But it's a chance the ball will be dropped and the setback with a loss could seriously damage the movement for marriage equality

* is pursuing equality on the path our LGBT organizations represent a sound strategy? The path of taking the state route gains rights for gay and lesbians with each success -- and it also ends at SCOTUS. However, it forces those in states with constitutional bans on marriage equality to languish without full civil rights until a favorable decision at that level at some unknown point in the future. It also relies on additional gains that can be made with the repeal of DOMA, for instance, something also promised but that we may not see any time soon.


I received an email from Tobias Wolff, Professor of Law at the University of Pennsylvania Law School, who had these interesting and thoughtful matters to share as we discuss this.

In 1972 -- 5 years after Loving v. Virginia, the anti-miscegenation case -- the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality. In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal "for want of a substantial federal question." This is a type of action that the Court uses only infrequently -- even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided -- in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court's earlier action.

As should go without saying, the Supreme Court's summary dismissal in Baker v. Nelson was flat wrong. It was wrong when it was decided in 1972, and, more to the point, I doubt that any serious lawyer would argue that it can be defended on the merits today. Even if you disagree with the constitutional arguments in favor of marriage equality, I don't think anyone could argue today that the issue does not present a serious and substantial question, especially in light of the Court's rulings in Romer v. Evans (the Colorado / Amendment 2 case from 1996) and Lawrence v. Texas.

But the Supreme Court has also said, on several occasions and very forcefully, that lower federal courts are not permitted to disregard binding Supreme Court precedent simply because there have been intervening changes in the Court's own cases that undermine the original decision. Rather, the Supreme Court has said that it is the Court's job, not the job of lower federal courts, to say when an earlier Supreme Court precedent has been effectively overruled by subsequent developments.

What does all of this mean for the Olson / Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it's entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.

Two more quick points. This kind of "dismissal for want of a substantial federal question" is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim -- that the federal government can't discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints -- in the end, they do not make the more careful argument but instead just go for broke.