Shooting the Moon on Prop 8

Lyle Denniston has an analysis of the briefs filed in the Prop 8 case before the Supreme Court, particularly the brief filed by Ted Olson and David Boies, the unlikely legal tandem challenging the law. He notes that their brief takes a very aggressive pro-equality stance:

Accusing the backers of California’s ban on same-sex marriage of seeking to turn marriage into an institution that serves only the government’s interests and does away with any private right to wed, the opponents of Proposition 8 on Thursday challenged the Supreme Court to strike down that measure as a stark contradiction of history and the Constitution.

The two California same-sex couples’ fifty-four-page brief was a bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision, or for one that moved gays and lesbians only a bit closer to marriage, but rather to give them a right to wed as fully as any other couple has, regardless of race, sex, or sexual orientation.

With such a sweeping approach, the brief took a considerable risk that it might be more than the Justices were ready to accept. But it also has the potential virtue of making it easier for the Court to settle for a ruling for same-sex marriage on narrower grounds – as the Ninth Circuit Court had done in striking down Proposition 8 a year ago.

Theodore B. Olson, a prominent Washington attorney who — along with an equally high-profile New York lawyer, David Boies — had fashioned their case from the beginning to be a broad one, told reporters in a telephone conference call: “We thought it was extremely important to put the entire panoply of the case before the Court. It was appropriate and necessary to paint the broad picture, and let the Supreme Court select the kind of decision within that range; we would like the decision to be as fulsome as possible.”

This really is a risky approach. This kind of strategic decision often has a major effect on the outcome of the case and they can backfire if the attorneys demand more than the court is willing to do.

And as Denniston notes, they’ve tailored the brief specifically to Justice Kennedy, citing his opinions in the two most important gay rights decisions in history, Lawrence v Texas and Romer v Evans.

Before putting forth that broad vision of the constitutional controversy over Proposition 8, however, the brief opened with a searing attack on the motives and the policy aspirations of the sponsors of that ballot measure, which California voters approved in November 2008.

Under the logic of that ballot proposition, the document argued, a state would be free to choose to deny marriage rights to any couple incapable of bearing children. Further, they contended, the philosophy behind the measure would allow a state to ban marriage altogether if a state chose to pursue a society that was not fully committed to producing children…

It argued: “Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians are not ‘okay,’ that their life commitments ‘are not as highly valued as opposite-sex relationships,’ and that gays and lesbians are different, less worthy, and not equal under the law.”

The measure, it added, “prevents gay men and lesbians from marrying, thereby making them ‘unequal to everyone else.’” That quoted phrase is from the Supreme Court’s decision in the case of Romer v. Evans, striking down a Colorado constitutional amendment that barred homosexuals from trying to gain new laws protecting them from discrimination. The Romer decision established the constitutional principle that states may not impose a “special disability” on gays and lesbians out of hostility to their sexual identities.

And like the DOJ’s brief in the DOMA case, Olson and Boies argued for heightened scrutiny for cases involving sexual orientation:

In addition, the brief argued that the Court should use this case to establish — for the first time — that laws that discriminate against homosexuals should be judged by a more rigorous constitutional standard. At one point, the brief appeared to be arguing that the Court should use the very toughest test: whether a discriminatory law can survive “strict scrutiny.” Few discriminatory laws can pass that test, because it requires proof of a “compelling government interest” and proof that the measure is “narrowly tailored” to promote that interest.

But the brief also embraced a less demanding test, which is called “heightened scrutiny.” That requires laws that are allegedly discriminatory to serve an important government purpose, and to be closely related to that purpose. That is the standard that the Obama administration has adopted, in arguing against laws that discriminate on the basis of homosexuality.

This is going to be so interesting to watch over the next few months. Oral argument is the last week of March. The ruling should come down in late June.

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  • It’s certainly one line of argument I use in the blogging context. If they can ban same-sex couples from marrying, what’s to stop them from banning any other marriage? I don’t remember what the condition was, but when I was a kid, my mother had to have her ovaries removed, negating her ability to have more children. Could this proposition be used as a justification or a precedent to annul my parents’ marriage? What if she had turned ill before she married?

  • Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    Risky appears to be the strategy of the day. And targeting Kennedy. Hmmm, seems like my comment on the other thread might just as easily be placed here.

    Although it’s also true I’m not a court watcher. I’m a post-decision reader (and not nearly enough of that, lately; I mean, if you’re talking about decisions of the current SCOTUS – reading decisions is actually all I do, lately). I don’t work with someone who ended up in first class next to Thomas on a long flight. I’m not friends of friends with someone who had dinner with Elena Kagan 2 weeks ago. I just have nothing in common with anyone on SCOTUS (that I know of, anyway) in terms of how my life is lived and who is in my circle. And, while philosophy counts for something, a huge amount of these decisions come down to justices doing what they think is the right thing. As Roberts has shown, that can involve quite the whirlwind of internal debate. If Roberts can’t predict where he’ll end up, then I certainly don’t have enough knowledge about the justices to go around predicting what they’ll do.

    All this is to say, maybe the DOJ & Olson/Boies strategy isn’t so risky after all. I certainly see the logic in it – both legal and political. Maybe with more knowledge of the court there’s good reason to believe that we can get the court to actually apply Korematsu and turn something particularly outrageous in US past into something that can be a tool for new and positive critical examination of life in our present moment.

  • ottod

    Without even looking at bios, there are at least 6, probably 7 of the supremes who either personally suffered discrimination as a minority (religious, ethnic, racial) or came from a family that did. Why should this decision not be obvious, or do some of us feel empowered to, you know, get even?

  • whheydt

    In a month, we’ll have reports on how the oral arguments have gone.

    In June we will almost certainly know what the SCOTUS decision is.

    If Prop. 8 is upheld, as a Californian, I epxect to see petitions circulated to repeal it…and given the opinion trends since Prop. 8 passed, and the tactical information gained since then as well, I expect such a repeal to pass.

    After that…I expect to see those that supported Prop. 8 crying to the courts to overturn the repeal and go against the “will of the people” that they have been touting though the current cases.

  • My commentary on Justice Kennedy is here. If he remembers his gay mentors and colleagues at the McGeorge School of Law, this is the ideal opportunity to honor them with equal rights.

  • Childermass

    whheydt @4: After that…I expect to see those that supported Prop. 8 crying to the courts to overturn the repeal and go against the “will of the people” that they have been touting though the current cases.

    That is a reason why it should be repealed even if the Supreme Court rules it unconstitutional.

    Also we don’t want to take the chance that the GOP wins the White House and appoints the judges that reverses the case.

  • =8)-DX

    “Oral argument is the last week of March. The ruling should come down in late June.”

    Whatever may be wrong with the legal system of the US, I am strongly envious of this. It takes literally YEARS to get anything done in the courts in my country.

  • Nentuaby


    Don’t get *too* envious. This is a very late stage; the case has been filtering through our courts since 2009.