Chad Griffin, the board president of the recently formed American Foundation for Equal Rights, which is supporting the federal Proposition 8 challenge brought by Theodore Olson and David Boies, sent an explosive letter (pdf) on Wednesday to lawyers for three of the nation’s most established LGBT legal organizations, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights.
Today, the skirmish that apparently has been going on behind the scenes since long before the lawsuit’s filing poured out into the pages of The Washington Post and into the full view of the LGBT and legal communities. For the first time*, though, the behind-the-scenes dispute that has gone on over the past several months is being presented here, with an accusation flying in the past 24 hours that LGBT legal groups wouldn’t “zealously and effectively litigate this case” and responses that such a notion is “off-the-wall” and “unfathomable.”
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The letter claims that, as early as the fall of 2008, Jenner & Block lawyer Paul Smith, the board co-chair of Lambda and the man who argued Lawrence v. Texas before the U.S. Supreme Court, was approached about this lawsuit and “declined” the opportunity to “play a role in the case.” Smith has not responded to a call seeking comment.
In May 2009, the letter claims individuals from what would become AFER discussed the potential involvement of other groups in the lawsuit with representatives, including Jon Davidson of Lambda, as well people from NCLR and the ACLU. All three groups declined to join the effort. On May 22, a few days before the California Supreme Court’s ruling upholding Proposition 8 as a valid enactment of the people, Theodore Olson and David Boies — the lawyers who opposed each other in Bush v. Gore — filed a lawsuit in federal court challenging Proposition 8 as a violation of the Due Process and Equal Protection clauses of the U.S. Constitution.
The ACLU, Lambda and NCLR — along with the Human Rights Campaign, Freedom to Marry and other LGBT groups — issued a statement soon thereafter, declaring that they “discourage[] 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 letter details this and other statements in the press that Griffin characterizes as “[h]aving gone to such great lengths . . . to tar this case in the press.”
In June of this year, however, the letter states that representatives of all three groups — including Kate Kendell and Shannon Minter from NCLR — participated in meetings and/or conference calls to discuss case strategy and/or “how to further integrate” the groups into the lawsuit. And, on June 25, the ACLU, Lambda and NCLR filed an amicus brief in support of the challenge, although Griffin’s letter claims that even the characterization of their filing as being “supportive” of the brief prompted disagreement from Jennifer Pizer of Lambda. Pizer, the senior counsel and director of Lambda’s National Marriage Project, said in an interview of the comment, “It just leaves me scratching my head a little bit.” She said that Griffin had been “delighted” by the filing of the amicus brief and that her concern about the word “support” was that it mischaracterized the purpose of the friend-of-the-court filing: “It’s not an endorsement of what’s in [the initial Olson-Boies] brief; it’s a complimentary presentation.”
Then, on Wednesday, as reported here, the three groups filed a Motion to Intervene on behalf of three other groups — Our Family Coalition, Lavender Seniors of the East Bay, and Parents, Families, and Friends of Lesbians and Gays — asserting that the Plaintiffs selected by AFER to bring the case “may be inadequate” to protect the interests of all people negatively impacted by Proposition 8.
At some point on Wednesday, although it is not clear when, AFER Board President Griffin sent the letter to representatives of NCLR, Lambda and the ACLU. The letter, as noted by the Post, declared that AFER “will vigorously oppose any motion to intervene.” Later in the later, Griffin goes into more detail about the reasons why AFER will oppose the intervention filed on Wednesday by the ACLU, Lambda and NCLR. He wrote:
Your intervention would create a complex, multi-party proceeding that would inevitably be hampered by procedural inefficiencies that are directly at odds with our goal—and the goal of Chief Judge Walker—of securing an expeditious, efficient, and inexpensive resolution to the district court proceedings. . . . Such potentially interminable delay is antithetical to the values on which your organization was founded and for which you and your supporters have fought so tirelessly.
This, of course, runs counter to the arguments made by the three groups, which was that the diversity of the proposed intervenor groups would provide the court with additional facts to place in the record about the harm done to Californians by Proposition 8 that could not be presented by the current Plaintiffs. Pizer, from Lambda, said the concerns about delay were unwarranted and the Lambda is “committed to an efficient but complete presentation of the case.”
Looking at Griffin’s letter, it is clear that — far from being blindsided by the Perry lawsuit — the LGBT legal organizations were well aware of and chose not to participate in the filing of this lawsuit. It is also clear, though, that the groups have been working with the lawyers for the case since its filing to discuss strategy and a way to “integrate” the groups more fully in the case.
When contacted Thursday, James Esseks, the co-director of the ACLU’s LGBT Rights Project, said of the distinction between the groups’ initial response and their filing on Wednesday, “People can disagree about when and whether to jump into the pool, but once you do it makes sense to swim as hard as possible to get to the other side. . . . We’re all in the pool; it’s not just those plaintiffs.”
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This is, in part, a turf fight, and there is no denying it. But it is a legitimate turf fight. These three groups and their boards have been involved in dozens of lawsuits relating to marriage equality. They have, for the most part, been well-planned and carefully strategized cases that have resulted in great forward movement in a relatively short time. Additionally, as Esseks said, “We know what the Alliance Defense Fund” — a group involved in many similar lawsuits and who will be supporting the Prop 8 proponent intervenors — “We know what arguments they’ll make.”
Additionally, these three groups are arguably more accountable to the LGBT community for their actions due to their long-standing community ties than is AFER, a new group with six California board members who have not, so far as I can tell, been involved with any marriage equality litigation prior to Proposition 8’s passage. At the same time, of course, anyone has the right to file a lawsuit to defend what she or he believes is her or his constitutional rights.
Toward the beginning of Griffin’s letter, he stated of the groups that “it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening.” Esseks, of the ACLU LGBT Rights Project took strong objection to that, saying, “Any suggestion that [the groups] would want to lose a marriage case is off-the-wall to me. It’s unfathomable.” Likewise, Shannon Minter, the legal director at NCLR responded in a statement that “Our only focus right now is on doing everything we can to help win the case.” AFER did not respond to calls for comment on this issue.
The lawyers for the proposed intervenors might be coming late to the party, but the reality is that the groups they are representing have the right to seek intervention in the case and to have counsel of their choosing in such an intervention effort. And though AFER clearly would strongly prefer for the other groups to remain as amicus participants only — and not be representing actual parties to the case — it is equally clear that Judge Walker is interested in presenting a robust factual record to the appellate court in this case, which is precisely what the proposed intervenors could help him do.
In light of the very diversity of the LGBT community that the proposed intervenors claim to represent, this intra-LGBT fight might have been inevitable. Regardless, though, here’s to hoping that everyone sits down in the coming days and weeks and figures out the best way to move forward with this case to help advance equality for all the Californians and LGBT people across the country who are watching this lawsuit with bated breath.
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* = I removed the “exclusive” from the headline because the letter itself had been published previously. The interviews conducted with the three groups today were exclusives, and the explanation of the timing of when AFER had begun approaching groups about the suit and when the three groups began cooperating with the lawsuit had not previously been discussed. But, as Rex Wockner had apparently received it and sent it on to Box Turtle Bulletin, which had republished it there, I removed the “exclusive” headline to prevent misinterpretation. I had not seen the letter posted anywhere prior to my publication, and no one who asked me about The Washington Post report suggested that they had seen the full letter either (in fact, most thought the letter was from Olson and Boies). The link name stayed the same because I didn’t want to change the link, obviously.
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Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
While this appears to be the first case AFER intends to handle, and they are not tied to the community, their suit seems well founded. It can be seen as risky, but equal protection is a basic Constitutional argument that any impartial court (yes, the Roberts Court?) would recognize. It is also understandable that AFER has other issues ahead and does not wish to be solely identified with this one. It will be interesting to see if people pursuing various cases will “play nice” and keep off each other’s toes.
I’ve been waiting all day to see your take on this. I’ve seen many LGBT people immediately jump on the “yeah, eff them!” bandwagon toward the community’s legal groups – which I chalk up to a general anti-organization mood in the community right now – but it seems forgotten that without the work of NCLR, Lambda Legal and ACLU in Re: Marriage Cases, there would never have been a Prop 8, and likely no reason for AFER to get in on the game now.
NCLR is complaining about poorly thought out legal strategy? Aren’t they the ones that brought that painfully bad argument to the State Supreme Court that almost EVERY constitutional lawyer agreed was destined to fail? Despite the fact that it was based on procedural issues, the end result is that to most people the Supreme Court ‘upheld’ Proposition 8 and validated it as lawful and non-discriminatory (which it is not). The public doesn’t read the briefs – they just hear the outcome in the sound bites on TV. Wonder why the poll numbers say marriage equality lost support last month? The California Supreme Court said it was “OK” to deny rights to a select minority (that’s actually not what they said though).
Had the NCLR et. al. brought a lawsuit on federal constitutional claims to the State Supreme Court, it’s likely that the justices would have reached the same conclusion they did in re: marriage cases and tossed Proposition 8 instead of upholding it. Now we are forced to go to the federal courts and convince them to classify gays and lesbians as a suspect class, something that has already been done under the state court.
jerekeys: The ACLU, NCLR, and Lambda Legal were dragged into re: Marriage Cases via the actions of a rogue Mayor. They would probably still be sitting on the sidelines saying ‘its not quite time’ had that not happened. I’m not disputing that they worked hard and did an amazing job in arguing the case. I am however saying that had it been left up to them to decide when the time was right, there would be 18,000 fewer married glbt couples in CA today.
I am with the established LGBT organizations on this one. As bluprntguy notes, until a federal court holds sexual orientation to be a suspect classification, we are stuck with rational basis and there has to be a Romer animus finding to get past that.
Dave,
I would worry about the Supreme Court inasmuch as Souter, a liberal justice and the one everyone thinks is gay, seemed to be issuing a warning about pushing too fast on rights not previously recognized.
“These three groups and their boards have been involved in dozens of lawsuits relating to marriage equality. They have, for the most part, been well-planned and carefully strategized cases that have resulted in great forward movement in a relatively short time.”
Can you name the cases that made GREAT strides?
Given the poor quality of the Boies/Olsen complaint compared with the focused and rigorous work of the ACLU amicus brief, I believe O&B need all the help they can get.
O&B ask the court for revolutionary relief. The ACLU works on the California case at hand and asks for Prop 8 to be overturned.
The court is far more likely to to take steps in the right direction than leap.
More perplexing question is why NCLR, ACLU, and Lamda Legal didn’t raise the federal issue with the California Supreme Court. Given the findings of re: Marriage Cases, it seems like that would have been a slam dunk win. The justices were practically begging for them to do it in the oral arguments. “Bring up the equal protection clause that hasn’t had an exemption taken out of it yet…”
Instead, the case they presented was a long shot at best. They already knew that they were losing their ability to head off federal challenges (the first Smelt case was filed before re: marriage cases). Certainly they knew that someone in CA with some money was going to be ticked off enough to challenge Proposition 8 on federal grounds (lo and behold, Smelt filed a challenge days after Prop 8 won). Why didn’t ‘gay inc’ just do it where they had the highest chance of success? Political reasons? Monetary reasons? Public support? Better to have mass rallies in the streets than to actually win this one?
“This is, in part, a turf fight, and there is no denying it. But it is a legitimate turf fight. These three groups and their boards have been involved in dozens of lawsuits relating to marriage equality. They have, for the most part, been well-planned….”
Is it just me, or did the lawyers at the Prop 8 orals look terribly outgunned, and also weakened by their time being split between so many splinters? That was my impression, and that of many people I know, but I don’t have significant legal experience, so I’d be curious as to your opinion.
The S.Ct., in cases like Ricci, is roling back existing civil rights law. Thus, why would anyone could the exist court will expand equal protection laws or civil rights to include a new suspect class?
Using Scalia’s dissent seems bizare because his dissent was a warning againt expansion of civil rights law.
The value of having specialized experise on gay rights court battles is that this expertise provides one with an intimate ability to understand risk. That seems lost here.
I would also keep in mind that, as I understand it, the Judge’s decision to have a fact-laden trial, rather than a quick punt to the 9th Circuit, was a surprise. The Olson/Boies team may be great in the appellate realm, but now we are dealing with a significant trial-level process. The skill set is remarkably different.
When is comes to deposition strategy, experts and other trial-level/factual decisions, why wouldn’t we want the groups that have the most expertise to be involved? I don’t care if Boies or Olson lead the oral argument at the appellate level. But nothing about their experience gives me confidence that they would be the best people at the trial level.
The letter wasn’t exclusive, but the responses from the three groups were. Good work!
Whatever happens, I hope Perry vs. Schwarzenegger moves as expeditiously as everyone originally intended. The quality of the arguments seem to be there. It seems that the question would be is the intervention necessary?
I don’t agree with needing to kiss ass for permission via votes to marry. So, it would be a waste of very good arguments if this case were to die because we voted to overturn proposition 8. As a result of this matter, a speedy, high quality, trial is very important.
Thank you for this info, I feel more informed about this topic.
I am sorry, but these groups had their chance and declined. I think a limited case, based on the top two lawyers before the supreme court, is the best solution. Do not want gay.inc to attempt to take this over. They are the reason prop 8 passed, and we don’t need their mismanagement again!
I have been avidly following the debate on marriage equality — as a layman — for some time now, since it is of direct import to my life (as half of a same-sex couple). Today, I was very lucky and had the opportunity to meet Mr. Olson here in DC, after a speech he gave (on the latest developments in the Supreme Court 2008-09 season). I wanted to thank him for taking up the cause of marriage equality and I actually got to ask a few questions about this turf fight between AFER and Lambda, ACLU and NCLR.
In summary, he was actually pretty complementary of Lambda, ACLU and NCLR, and I didn’t get a sense of deep concern about this motion to intervene because that was a decision of Judge Walker. He just said that the important thing was that everyone was working on the same side — I was left a bit more hopeful that this rupture will be healed in the near future. More generally, he was very gracious, quite open, and quite sincere (not an easy thing for me to say, since I am a complete cynic). Yes, he is a solid, conservative, libertarian leaning Republican — something that I’m definitely am not. But I have no doubts of his convictions, and frankly, I am very pleased that we have litigating on our behalf, two litigators (Olson/Boies) who are have more experience in front of the Supreme Court than anyone else.
I understand the ACLU/Lambda/NCLR concern that the Federal courts are not terribly favorable right now, and that a defeat may set us back. My guess is that a defeat on the federal level would slow or stop our forward progress, but it seems unlikely that it would reverse what we have gained thusfar. Still, I understand it is risky.
Nonetheless, I strongly disagree with ACLU/Lambda/NCLR about their reticence to challenge Prop 8 in the Federal Courts. The state-by-state strategy is running near its end. We have won most of New England (although we still have a fight in Maine ahead of us at the ballot box), and we are likely to win a few more states in the next 5 years — NY, NJ, IL, maybe MD, and MN. However 30 states have constitutional amendments, and those cannot be overturned by court action or legislative victories. A few states make it relatively easy to amend the constitution by plebiscite (California in particular), but many do not. My current state, Virginia, went to the trouble of passing a very hateful constitutional amendment through 2 sessions of the legislature in order to qualify it for the ballot and then put it for ratification in the 2006 elections (a very bitter day for me). Given Virginia’s history on racial discrimination, and the fact that many of our democrats are homophobes (including our current nominee for the Governor’s race), it will be at least another 10-20 years before that is reversed.
The cold hard fact is that there will almost always be more bible thumpers, Baptists, Mormons, conservative Catholics then there will be gays/lesbians/bisexual/transgendered people. They get to organize, tax-free, every Sunday, and hating and oppressing the LGBT community is one of their primary concerns. They have the field soldiers, and the money, to win these referendum fights, and they used that power to oppress us at every step. Our straight allies — a few are really passionate in defending us (David Patterson comes to mind, among politicians). Many more, disagree passively with homophobia, and will vote against anti-gay ballot measures, but they aren’t going fight active battles on our behalf. The issue is just not very immediate for them. Many politicians will gladly take our money and votes but throw us under the bus at the drop of a hat (like Bill Clinton and Barack Obama)
I think there is a decent chance that the homophobe crowd over reached on Prop 8. They set up a situation of “separate but equal” — California, in theory, gives equal rights to LGBT persons via Domestic Partnerships, although that was shown to be untrue in the Marriage Cases last year before the state Supreme Court (and let to our victory there). I don’t see that being overturned directly by a Federal Court because of the precedent of Brown vs Board of Ed.
More importantly, Prop 8 stripped an EXISTING right (a unique case) and it should be pretty easy to show this was driven by voter animus. That violates Romer v. Evans which Justice Kennedy authored. Maybe he will overturn himself — but I don’t see that as likely
Yes, maybe it is soon, but this case is a unique, one-shot target. We should take our chances. We really don’t have other viable options. We’re not going to win much more at the state level. Public opinion is moving slowly in our direction, and is already ahead of where it was, at the comparable time (1967) when bans on inter-racial marriage were brought before the Supreme Court (Loving v. Virginia). And now, we have caught one other lucky break — we have the best attorneys, from both sides of the aisle, on our side as litigators.
Ok — that was my 2 cents and them some. I defer to sharper legal minds (and I want to get some sleep!)
It may be too simplistic, but the multitude of GLBT action groups sometimes remind me of the GOP. Is it all about power and control? It seems to me a united front by all GLBT organizations would present a more cohesive and unified front presenting one message and one messenger. I totally support the lawsuit, and I am disappointed there is so much dirty laundry flying around. Many GLBT people are suffering discrimination, loss of jobs and loved ones and GLBT organizations demonstrate they care more about the GLBT politics than the people they ‘purport’ to represent. I’m disgusted!
The California case is weak on its face, and more so in comparison to the suit filed by Mass AG Martha Coakley. The California suit is brought by corporate lawyers in love with their own publicity. Unlike Lambda, Boies and the other one have no stake in the outcome beyond their own egos. The California case needs to be slow-boated by any means necessary.
Before Prop. 8, there were those saying, “You know, if In re Marriage Cases pushes the issue too fast, California might pass a constitutional amendment against marriage… I mean, they already have something like DOMA.”
The Court did as it willed, Prop. 8 passed, and bewildering outrage ensued.
Now there are people saying, “You know, if the federal courts impose same-sex marriage too quickly, the Federal Marriage Amendment….”
Sigh.
How is that, then, any different from the current situation? NCLR, ACLU and Lambda Legal are “being dragged” into another legal battle they feel is coming before its time – so why not assume that they would again, in your words “[work] hard and [do] an amazing job in arguing the case”?
I also don’t think its fair to say that a considered and possibly accurate analysis that its too soon to take marriage equality to federal courts equates with “sitting on the sidelines.” I know patience is generally and validly in short supply right now, but we’re not talking about a strategy without the possibility of horrible consequences if it goes wrong.
If Scalia & Thomas stand up for the Bill of Rights! (I know, imagine that!) I do believe that equal treatment might squeak by, even in THIS Court.
Lawrence v. Texas; Romer v. Evans; in re: Marriage Cases; Baker v. Vermont; etc.
Also, numerous cases having to do with overturning sodomy laws, enforcing anti-discrimination laws, family recognition, adoption law, HIV and AIDS discrimination, and marriage equality. Wolfie, just because you can’t name the cases doesn’t mean there haven’t been hundreds of rulings that have created vital momentum and precedent for equality in many arenas of law.
“dozens of lawsuits relating to marriage equality.”
Thats what I was looking for because I don;t think they;ve been in dozens relating to marriage equality. The other issues you you replied with yes.
I personally feel that there is no need for them to be involved in the AFER,and if the reasoning behind them being involved is only thier “ties” to the comunity and what they have done in the past thats really not enough to justify it. Especially considering that the lawyers involved with AFER are much stronger than any the other organizations can come up with.
I fail to see how a loss at the federal level changes anything. It’s unlikely to roll back marriage equality in the states that already have it and it’s not likely to stall any states from adopting it. Once NY, RI and DC legalize gay marriage, there’s not many other states in a position to do so.
I think it’s much more likely that the ACLU et. al. want to stall or narrow this decision.
It may be unlikely to roll back equality where it exists, but it will certainly make the battle that much more difficult for states without marriage equality to argue a case for relationship recognition in states that do not. It would force us to work almost exclusively through legislative bodies and elections – and I don’t think that’s a strategy for quick movement.
A decision from SCOTUS ruling that states have a rational basis for limiting marriage to opposite sex couples will have an impact far beyond marriage. Conservative states will be able to use the same legal reasoning to defend other discriminatory policies – parenting bans being one example. If this goes to SCOTUS and loses, expect to see conservative states emboldened to pass Florida-style same-sex adoption bans, not just the Arkansas-style “unmarried couple” ones that Louisiana, Tennessee and Kentucky are already trying to emulate.
But things like overturning sodomy laws, antidiscrimination, adoption, family recognition and the like ARE related to marriage equality. Those cases create precedents, influential authority, and a legal climate in which marriage equality arguments can advance. Furthermore, Baker v. Vermont and in re marriage cases are exactly on point.
It doesn’t take much research to find that Lambda Legal, NCLR and the ACLU “have been involved” in Goodridge v. Department of Public Health (Massachusetts), Varnum v Brien (Iowa), and Kerrigan v. Commissioner of Public Health (Connecticut). Sorry my 20 minutes of google doesn’t rise to the level of “dozens.”
Also, by what standard do you judge that the lawyers representing AFER are “much stronger” than any the “other organizations” can come up with? Olson and Boies are certainly excellent lawyers, but can you point me toward the specialized knowledge in the area of marriage equality that makes them better advocates than anyone at the LGBT orgs?
Chris is right, ACLU, NCLR, Lambda Legal (and New England’s GLAD) have been doing the heavy lifting on marriage equality for almost two decades. Regardless of whether or not we agree with their initial response to the Olson-Boies case, I don’t think there’s a strong argument that can be made for excluding these groups from the case.
In addition, Wolfie, though not the lead on the GLAD marriage cases in New England, the other groups often were involved in those cases representing amicus interests.
Well, the 30 states with constitutional amendments are out anyway if you avoid federal issues. California clearly proved that. We have 6 states with marriage equality, a few more on their way. A few possibly up for grabs. The remaining (states like NC) will have to wait 10-15 years to see marriage equality if you believe the poll predictions. Clearly, we are at the end game of this state by state approach.
You have to remember that 75% of the population disagreed with Loving v. Virginia when that decision was handed down. We are already well beyond that with ‘gay marriage’ and support is likely to grow in the coming years (especially if there is a favorable 9th circuit ruling).
75% of the population may have disagreed, but the majority of state anti-miscegenation laws had been repealed or overturned. Only 17 remained. We are not even close to that with marriage.
The 75% number appears to represent the number of Southern whites who supported the bans in the years before Loving.
One source states: “A Gallup Poll indicated in 1965 that 42 percent of Northern whites supported bans on inter-racial marriage, as did 72 percent of southern whites.”
There’s also the possibility that people disagreed with Loving because they thought it was an inappropriate intrusion of the federal courts into marriage, which traditionally has been a matter for the states (hence the diversity among the states in whether you can marry your first cousin, a 16-year-old, etc.), but were OK with interracial marriage. It’s probably not representative of the population, but I do know many conservatives and libertarians who are not opposed to SSM in itself, just opposed to having it “imposed” by the courts. (Some of these folks, if they don’t plan a future in politics, will even say that they think the Court should not have imposed interracial marriage.)
For a comparison to Loving, you’d need to survey Americans asking, “Do you believe there is a federal constitutional right to same-sex marriage?” Given the annoying popularity of textualism these days and the probability that even the Constitutionally-ignorant American populace is aware that sexual orientation isn’t mentioned in the Constitution, I don’t think you’d get the same numbers as you do for just plain “Should the government legally recognize committed same-sex relationships?”
Why do you assume that the test for the equal protection argument is a rational basis test? First of all, the 9th circuit, in the case of Witt v. US Air Force:
http://www.aclu-wa.org/library_files/witt_decision.pdf
did an analysis of Lawrence v. Texas and decided (2-1) that it was decided, although not specifically delineated, on a “heightened scrutiny” basis, and that, therefore, gays in the 9th circuit were entitled to have the same standard applied to cases arising in the 9th circuit. The dissent held that Lawrence v. Texas was decided on a “strict scrutiny” basis and that is the standard which should apply in the 9th circuit.
Moreover, the first question posed by Judge Vaughn in the present case is what is the proper standard to use in deciding the Perry case. It’s possible the SCOTUS ultimately could decide that Lawrence was decided on a rational basis test, but that really flies in the face of the cases which the Court used to support their holding in the Lawrence case. I would recommend that you read the Witt analysis of the standard to use before you assume that the rational basis is the test to use.
No, the obvious reason is the reason given by the groups and mentioned in this post, namely that they “discourage[] 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.”
But, as the ACLU’s Esseks said, once Olson and Boies filed suit and jumped — with our marriage equality rights in hand — into the pool, “it makes sense to swim as hard as possible to get to the other side.”
It’s pretty obvious why they didn’t raise the federal argument. Any ruling by the Cal. Supreme Court would be immediately appealable to the US Supreme Court. Why in the world would anyone want that issue going to SCOTUS right now given its current makeup, unless your goal is to get a horrible 5-4 ruling that will set back the gay rights movement by decades?
The 9th Cir. case seems more grounded in Scalia’s dissent (which went on at length about how Kennedy’s opinion couldn’t actually be grounded in rational basis review) than in Kennedy’s opinion.
Also, the Kennedy opinion stated, “The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” That doesn’t sound like the heightened or strict scrutiny standards, which require a state interest deemed “important” or “compelling” and that the law is “substantially” or “closely” related to. “Legitimate state interest” and “justify” are phrases for rational basis review.
I don’t think anyone is assuming rational basis SHOULD be the test. But it is quite possible that if this case goes to SCOTUS, the court will issue a ruling that definitively overrules Witt, establishes that sexual orientation is not entitled to any type of heightened scrutiny for any purpose, and that banning same-sex marriage is okey-dokey. This would have profound implications and probably would eliminate any chance of overturning DADT, DOMA, and state adoption bans in the courts. I believe that is what the legal groups are trying to avoid. Thanks a bunch, Chad Griffin!
The First Circuit Court of Appeals, in Cook v. Gates, also undertook an analysis of Lawrence v. Texas to determine what standard of review to use in the Cook case. They determined that, notwithstanding the phrases “legitimate state interest” and “justify” that Lawrence was decided on a “heightened scrutiny” basis. See:
http://dont.stanford.edu/cases/Pietrangelo-v-Gates1stCir9Jun2008.pdf
They did an extensive analysis of this because the trial court had used your arguments to hold that a “rational basis” test was proper. In overturning this reasoning, they held that “no legitimate state issue” could be interpreted as “heightened scrutiny.”
But Pietrangelo says that the Lawrence Court was applying heightened scrutiny to the liberty interest in privacy, NOT that it applied heightened scrutiny to a classification. “There are at least four reasons for reading Lawrence as recognizing a protected liberty interest.” The case does not say that sexual orientation is a classification that, like sex/gender, receives heightened scrutiny.
Marriage recognition inherently can’t be a matter of privacy, because you’re asking the government to proactively do something, not for the government to leave you the hell alone.
I am skeptical of calling it a matter of liberty, either. Again, you’re not asking for a due process freedom, which implicitly is a right of non-interference. You’re asking for equal protection.
Thanks for your enlightenment. I’ve been retired for 20 years and when I taught, I taught Contracts and Remedies. The only Constitutional Law I know goes back to law school about 40 years ago. I appreciate your help in understanding these issues.
Without being in California and seeing firsthand the emotion and activism in the days following the vote, I think it’s difficult to appreciate what was occurring. The groups with operations in California should have been close enough to foresee this outcome.
It was completely naive of ‘gay inc’ to assume that they would have been able to head off a federal lawsuit by ‘discouraging’ it. If it wasn’t AFER, it would have been someone else…
Can I have some of what you’re smoking?
Yes, that narrow approach is important. Olson and Boies’ brief reads like it’s asking the courts to establish same-sex marriage in all 50 states, right now. SCOTUS will have dozens of amicus briefs telling them that if they adopt Olson’s argument, that means DOMA is out the window, DADT is out the window, and the marriage laws of 45 states are out the window. Ain’t gonna happen. ACLU brief limits the argument specifically to California, will be much less scary to the courts and much more likely to win, and just as important, limits the damage if we lose.
No the Prop 9 lawyers did great. For those who don’t know, 99.9 percent of appeals are already decided before the lawyers arguing them utter a word in court. The judges get briefs beforehand and usually have a draft opinion written before oral argument begins. It was clear from the outset that those judges had already made up their minds. You can’t persuade someone who doesn’t want to hear what you’re saying. And by the way, the Prop 8 people won DESPITE that smarmy, smug argument by Ken Starr, not because of it. I could see from the justices’ body language that they were sick to their stomach listening to his pablum.
Sorry, meant the lawyers arguing AGAINST Prop 8 did great.
Amen, amen, amen. Anyone who thinks this current US Supreme Court is going to rule that all 50 states must marry same-sex couples needs some serious medication.
Thank you, I appreciate the reality check. (Seriously.)