I am one such heterosexual. In fact, I have long believed, and continue to argue, that marriage equality is the defining civil rights issue of my generation.
Although the opposition has gone to great lengths to confuse the public with innuendo, fear-mongering, appeals to personal prejudice and, in most cases, outright lies, the question of marriage equality is actually simple and bracingly clear: from a legal and constitutional standpoint, the government can no more deny gay Americans the right to civilly marry than it can deny them the right to use the post office. And how various pastors, rabbis, priests, imams or their congregants feel about either issue is, even if it were understandable, wholly irrelevant. The same can be said of our elected officials. They can huff and puff, block and bluster, delay and decry, but at the end of the day, whatever their personal beliefs and legislative tools, they may not be able to, despite their best efforts, undermine so solid a Constitution.
An America that willfully ignores the Constitution and continues to deny the LGBT community the equal protection of the laws is not an America I am proud to live in. There is very little I can personally do other than to continue to speak out for equality whenever I am given the opportunity and to use my admittedly limited powers of persuasion to try to open heretofore closed minds; to patiently and didactically explain to anyone who cares to pay attention the finer points of civil and constitutional law, hoping against hope that - self taught lay person that I am - I'm not mucking it all up.
Irrespective of how I or anyone else feels about gay marriage, however, the decision is going to be made for all of us - sooner than we realize - and it is going to come, as it should, from the courts. And although we'll hear a lot of screeching about judicial activists trying to shove their personal beliefs down the throats of a beleaguered, tax-paying, God-fearing majority, that is precisely what the courts are set up to do. There is a reason we have three branches of government, why we have the separation of powers, checks and balances. And the judiciary has been given very specific duties by the Constitution; chief among them is to interpret the law - and in the case of the Supreme Court, the document itself - and to enforce its protections, even if we citizens disagree.
On January 11th, 2010, opening arguments are set to begin in U.S. District Court for the Northern District of California for what is arguably the most important civil rights trial since Loving v. Virginia in 1967, which struck down anti-miscegenation laws in the United States. The trial is Perry v. Schwarzenegger, et al and it claims that in light of Proposition 8, which amended the California State Constitution to exclude gays from the right to civilly marry, the California Constitution is therefore in violation of the U.S. Constitution’s Equal Protection Clause. If decided for the plaintiffs, Prop 8 would be overturned and gay marriage would once again be legal in California, as its state Supreme Court had previously held. Any victory in this venue, however, will be largely academic. There would likely be an emergency stay put on the ruling until it could be heard at the appellate level by the United States Court of Appeals for the Ninth Circuit, which covers California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon, and the Eastern and Western Districts of Washington State. A victory at this level would again likely not go into effect before being heard by the United States Supreme Court, where it would, by definition, face its toughest test. And while victories at the district and appellate level would be heartening, proponents of gay marriage shouldn’t get too excited until that final determination is made.
Perry v. Schwarzenegger is remarkable on several fronts. For one, the named defendants are on the side of the plaintiffs. Gov. Schwarzenegger, despite being the titular defendant, was not in favor of Prop 8 and his administration has filed a "friend of the court" brief on behalf of the plaintiffs' position, as has Attorney General Jerry Brown, also named. Both are essentially throwing up their hands and conceding that the state has no valid legal argument in defense of its own constitutional amendment.
But perhaps most remarkable of all, the plaintiffs' case is being argued by none other than Ted Olson, a major figure in the conservative legal movement. Olson was George W. Bush’s Solicitor General from 2001 to 2004 and was the lawyer who famously argued for the plaintiff in the Supreme Court case Bush v. Gore, the decision of which handed Bush the presidency. Equally surprising is that David Boies, Al Gore's representative in that watershed case, has joined forces with his former courtroom nemesis Olson to fight for marriage equality. And although this sounds at first blush like a real “kumbaya” moment in jurisprudence, not every interested party is on the same page. The ACLU, and many of the gay rights organizations that have been waging this battle the longest, do not agree with the strategy of taking it to the federal level or with the timing of the fight itself. Several of these groups put forth a motion to intervene as plaintiffs, but their motion was denied by judge Vaughn Walker who is hearing the case. He ruled, probably correctly, that Olson and Boies have the necessary legal and constitutional chops to proceed without assistance.
The skeptical and frustrated civil rights groups have some fair arguments. They have long advocated fighting these battles locally, often at the state-wide level, slowly winning hearts and minds and desensitizing voters to gay marriage without a potentially incendiary, all-encompassing federal ruling. It has been their fondest hope that by time the Supreme Court got involved, there would already be a broad consensus in support of gay marriage by the states. They further argue that the current make-up of the Supreme Court is not conducive to a ruling for the plaintiff and that if they were to lose, two things will happen: 1) There will be a devastating legal precedent on the books and 2) Olson and Boies will slink back to their high paid private practices and leave the pieces to be picked up by the very groups who were against the strategy in the first place and who are being excluded from participating in the trial in any meaningful way.
Regardless, the trial is going forward and we ought to all pay close attention as it proceeds because it has the potential of eventually making marriage equality the law of the land.
Ted Olson, for his part, has expressed full and total confidence that he will prevail. Publicly, he is behaving as if victory were a fait accompli and I would like to believe him. As Solicitor General he spent four years arguing in front of this same Supreme Court (sans newly minted Associate Justice Sonia Sotomayor) on behalf of the Bush Administration. He is about as conservative a legal scholar as one can find and yet has gone on record as being completely mystified as to what legal argument Prop 8’s proponents could possibly proffer. And he certainly has, by all accounts, an encyclopedic knowledge of the Constitution and an intimate understanding of the current players on the Court.
I am not nearly as confident as Mr. Olson. To the extent that I’m hopeful, here’s why: Olson is right. Prop 8’s proponents don’t, in fact, have any legal argument whatsoever that could possibly hold constitutional muster in any objective sense. The language of the amendment in the California Constitution is nakedly discriminatory and a clear violation of the federal Constitution’s 14th Amendment and its Equal Protection Clause, especially in light of the precedent set by Loving v. Virginia. The good news for those of us who are fighting for marriage equality is that “marriage is sacred” is not a legal argument and the legalization of civil marriage has nothing to do with houses of worship, which will continue to be allowed to define marriage as they please and only perform those ceremonies which conform to their theological criteria. What the plaintiffs will argue, quite correctly in my view, is that no state is allowed to deny to any of its citizens the equal protection of the laws and that the federal judiciary has a constitutional obligation to enforce such equal protection against a violating state.
But here’s why I am not as sanguine as Mr. Olson about our chances: the current Supreme Court majority. Olson, the victor in the legally loathsome and indefensible majority opinion in Bush v. Gore (which literally, stunningly, declared “this is a one-time only decision and should not be considered precedent”), should know better than anyone: the four so-called conservatives on the Supreme Court – Roberts, Scalia, Thomas and Alito – are the true “judicial activists” that conservatives claim to despise and raise so much campaign cash railing against. This far-right wing cabal has shown no compunction in ignoring the law, and its own precedent, in order to advance a pre-conceived social agenda; those four are the living definition of “activist”. Because they don’t want to see gay marriage as the law of the land, they will likely do legal contortions – as they did in Bush v. Gore – to reach the conclusion they want to reach. So egregious was their activism in 2000 that it prompted former Charles Manson prosecutor Vincent Bugliosi to write a piece for the Nation called “None Dare Call It Treason” in which he argued that the majority decision on behalf of Bush was not just wrong, but, in fact, downright traitorous. (http://www.thenation.com/d
I have no reason to believe that any of those four justices will suddenly have an epiphany and realize, like Olson apparently has, that supporting marriage equality is the true conservative stance. Nor do I expect them to say “We personally hate the idea of gay marriage but the Constitution is clear”, which is what by all rights they ought to say. Instead, they will likely twist themselves – and their words – into a legal pretzel and come up with some cockamamie rationale for voting against it which will be both an insult to the intelligence and an assault on the Constitution they swore to uphold. If we assume that the more liberal four – Stevens, Ginsburg, Breyer and Sotomayor – rule to uphold the Ninth Circuit’s still theoretical decision in favor of the plaintiffs, then this leaves Anthony Kennedy. Justice Kennedy, if indeed he’s the tie-breaking vote, will be single-handedly responsible for forever changing the face of America in favor of equal rights for all or, conversely, for setting the civil rights movement back in a potentially irreparable way.
Kennedy is hard to read. He certainly has a mostly conservative bent. He has ruled with the conservative majority in some pretty shocking decisions, not the least of which was Bush v. Gore. However, he also wrote the majority opinion in Lawrence v. Texas, in which he and Sandra Day O’Connor voted with the liberal bloc to strike down anti-sodomy laws in Texas, and, by extension, any other state that had them on the books. The 6-3 ruling was decided on 14th Amendment grounds, with five justices holding that it violated Due Process guarantees and O’Connor holding separately that it violated Equal Protection guarantees. Naturally, Scalia, Thomas and then Chief Justice William Rehnquist dissented. It should not be assumed, however, that just because Kennedy voted to decriminalize private, consensual gay sex between adults that he will vote to force gay marriage on the states.
I could be (and profoundly hope I am) wrong, but I fear that it goes against Kennedy’s nature to want to be responsible for such a sweeping decision - one that will trump “voters' rights” and cause such major social upheaval - even if the law is crystal clear. And I imagine he will be under tremendous pressure from the Chief Justice and his fellow conservatives on the Court to rule with them. He certainly has not been immune to their jurisprudent charms in the past, and we have no reason to believe he will be this time, especially on a case with such wide-ranging social consequences. It is for these reasons that I will be more than shocked if the Supreme Court reaches the legally correct decision, despite Mr. Olson’s stated - dare I say "supreme" - confidence.
Only time will tell if my pessimistic prediction proves correct. First, we have to win at the district and appellate levels (and such wins, though likely, aren’t a slam dunk), and then wait until the Supreme Court hears the case. It's going to be awhile. In the meantime, I think it would behoove us to pay close attention to the initial trials and the rationales that are used in the resulting decisions. When oral arguments are at long last heard by the Supremes, we will be on the verge of – and perhaps one single justice’s vote away from – either one of our country’s greatest civil rights victories or, like the “separate-but-equal” decision Plessy v. Ferguson, one of its most embarrassing legal stains.
Wherever one stands on the issue of gay marriage, or on the wisdom of fighting Perry v. Schwarzenegger at this time or in this venue, the wheels are in motion; the judicial train has left the station. Now all we can do is sit back and wait to see what kind of country we have: an honorable one that doesn’t just pay lip service to protecting every citizen's unassailable right to “Life, Liberty and the pursuit of Happiness”, but actually does it... or a hypocritical one that upholds the Constitution only when it doesn’t get in the way of its own petty prejudices. I sincerely hope it's the former, not just for my gay friends, but for all of us.
For good or for ill, history begins January 11th. I'm going to be a witness to it. I hope you'll join me.
