Saturday, May 30, 2009

Open Forum: Is the Federal Prop 8 Challenge Wise?

Once on opposite sides of a major U.S. court case Bush V Gore to determine the outcome of the 2000 presidential contest, Ted Olson and David Boies are now filing a federal challenge over the courts ruling on proposition 8.

The two attorney powerhouses are arguing that prop 8 violates the U.S. constitutional guarantee of equal protection and due process and maintain that federal courts will recognize sexual orientation as a suspect class that must be protected nationwide.

Below is a video of Ted Olson and David Boies discussing their case and plans with CNN's Larry King.

The loudest critics against this move are coming from those within the LGBT community. They are suspicious over Ted Olson who doesn't try to hide the fact that he is conservative. They also feel that there are not enough federal protections to have sexual orientation deemed a class that needs protection and don't believe they have the votes needed at the U.S. Supreme Court level to bring forth federal marriage equality. The activists and organizations prefer to take the state by state route, and feel that the Supreme Court issuing a ruling against same-sex marriage would set a very bad precedent for the movement.

What are your thoughts about this federal case for marriage equality? Regardless of the outcome should the push be made. Can we compare it to other civil rights struggles, where states refused to grant rights until mandated by the courts?


ACH said...

It would be a BAD IDEA to take it to the federal level at this point. A decade or two from now, I wouldn't be at all surprised if same-sex marriage comes to be seen as protected by the federal equal protection clasue and/or due process clause. For the equal protection clause, the (statutory) same-sex marriage ban was over-turned on the basis of treating sexual orientation as a distionction requiring laws pass strict scrutiny. At the federal level, only race currently get this.

Roughly, strict scrutiny means that a distinction based on some classification is constitution only in the case of a comelling state interested (=a really good reason to override some right). So far, sexual orientaion laws have only been subject to rational scrutiny (=a law has to have a justification that could be considered reasonable.) Distinctions on the basis of gender are subject to a weird intermediate level. So I see no reason to think that the US supreme court would, at this point, require distinctions on the basis of sexual orientation to pass strict scrutiny.

As for due process (this is code for "right to privacy" btw), it's kind of a crapshoot. The US constitution has no right to privacy (explicitely), and it hasn't been applied to many things at this point (although it was used to declare sodomy laws unconstitutional a few years back. However, only a plurality of 4 of 9 justices signed the opinion, with one justice wanting to declare only some somdoy laws unconstitutional, including the Texas law then under consideration, on the basis of equal protection issues.)

Basically, at this point, a federal challenge to prop 8 would probably fail, setting up an undesired precedent. And it would do so in a context where waiting a few years may change the make-up of the court, and possibly build up some useful precedent on related by less controvercial areas that could result in a successful challenge at the federal level. A loss now would make a success later more difficult.

CrackerLilo said...

Yes. Gods, yes! We need something bold! I'm so happy those two teamed up on our behalf. I might be proven wrong and have my heart broken, but you know what? Nothing regarding this issue will break my heart worse than the judicially-mandated legal divorce that was forced on L'Ailee and I by Massachusetts judges. And that got turned around!

Pretzelboy, some of us--and here I am thinking of two 70-something friends of mine, a longtime lesbian couple--don't have a decade or two to wait. Nothing in this life is guaranteed for those who are young and healthy today, either. May as well take the chance.

Anonymous said...

... uh-oh ... *sigh*

Well, the issue of slavery was a long and arduous one that was brought before the Supreme Court several times, as well. In addition, abolitionists also took the state by state route as well ... the two fights are very similar ... we just have to continue to push and remember not to lose wind in our sails should we suffer a defeat (large or small) ...

Queers United said...

I support this idea, I think the only way to full 50 state marriage equality is through the supreme court. It may fail, and while that would set a bad precedent I don't think it would stop individual state courts from ruling differently as did a number of other courts. If we win, it would be huge, go down in history and grant full equality with regards to marriage nationwide.

Gil said...

I hate how LGBTQ activists are sometimes too conservative. We need to push the issue however we can. No matter what the outcome is. We can't wait another decade for equality.

Anonymous said...

To have these 2 come together and fight the cause is totaling worth while. I might be wrong but its a crap shoot if we get it on the ballot in Cali and we lose yet again. than what call these two back and say okay were ready....dont think so. The so called GLBT activists have been acting like pansies (true to form) by dragging there high heels and doing the wait and see aproach. didnt we learn are lesson from the 60's?

K said...

I wrote about this on my blog on Friday, and I think the problem is if we push for federal recognition we could end up with a federal marriage segregation amendment. Right now, people don't feel there is a need for it but unless we have the 13 states to block such a measure, if we move forward towards a federal movement we could end up with an even worse situation than what we have now.

X said...

if we lose at the federal level it's an automatic challenge to every state level win..

historically the SC has usually only overruled minority numbers of states, otherwise they usually defer to states right to choose (which would not be a loss.

we need more states to support if we're to have any real hope of SC forcing the issue to other states, or even for the SC to address it all...

it's just publicity, and probably bad publicity at that, since anything other than an win (unlikely) will be used against marriage equality, as "gays are trying to force you to accept them".

sad, but accurate if I don't miss my guess

Rebecca said...

I really wish they hadn't done this.

Because SCOTUS will rule against them and possibly ban same-sex marriage nationwide. The high court's too conservative to go there now. We need to lose Scalia or Thomas first.

Post a Comment