This is the third in a series looking at the suddenly crowded field of federal lawsuits seeking to make history by being the first to secure equal marriage rights in the United States.
In law, a dead horse can beat a stallion at the finish line. And that's just the kind of scenario one U.S. senator was envisioning with his questioning of Supreme Court nominee Sonia Sotomayor in July.
The dead horse is Baker v. Nelson, a case brought by a gay male couple denied a marriage license in Minneapolis during the toddlerhood of the gay civil rights movement, less than a year after the Stonewall Rebellion.
The stallion is Perry v. Schwarzenegger, a case brought by two same-sex couples denied marriage licenses in San Francisco just this year, a time of enormous advances in equality for LGBT people, particularly with regards to marriage licensing.
The surprise stallion
If not for one thing, Perry might be just another four-legged, Triple Crown wannabe. But this entry into the field of federal lawsuits seeking equal marriage rights has a superstar legal team in the saddle.
Famous conservative Theodore Olson and well-known liberal David Boies announced in May they were joining forces to file the lawsuit to challenge California's ban on same-sex marriage. They knew there would be gasps of surprise—particularly given Olson's very strong connections, past and present, with conservative politics. They knew there would be critics—particularly from the established LGBT legal community that has been immersed in the marriage equality fight since its most sincere origins in Hawaii in 1993. But they promised they were committed to run the track all the way to the Supreme Court.
Olson and Boies, with the support of a newly formed group called American Foundation for Equal Rights, filed in a federal district court in San Francisco, one of the most liberal districts in one of the more progressive circuits, the 9th.
Olson has argued at least 50 cases before the U.S. Supreme Court already and won most of them. He was solicitor general—a position sometimes dubbed as "the 10th justice"—from 2001 to 2004 and had an 82 percent win rate before the Supreme Court.
Though Boies' numbers are not as impressive, he has been seen successful enough to be dubbed the "Tiger Woods of the legal profession" and "the Wall Street Lawyer Everyone Wants."
"We acted together because of our mutual commitment to the importance of this cause," wrote Boies in a July 20 essay in the Wall Street Journal, "and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens."
The part that captured the imagination of many people in and out of the LGBT community was Olson's very strong ties to conservative politics. He helped found the ultraconservative Federalist Society and held high positions in the administrations of some of the most anti-gay presidents in history. Suddenly, for the first time, he was talking publicly about "gay men and lesbians" as "our neighbors, co-workers, teachers, friends and family."
Olson's involvement was such a surprise, it prompted some bloggers to speculate he was trying to sabotage momentum for same-sex marriage by bringing a premature lawsuit. But it prompted others to praise him for waging a fight for equality that a gay-friendly President Obama seemed reticent to take on.
As knowledgeable, strategic and committed as the LGBT legal community is, it is hard to imagine a more powerful and prominent legal team as Olson-Boies for a same-sex marriage case. But gay legal and political groups were instantly critical. In a joint statement issued just days after the Olson-Boies lawsuit was announced, nine of the country's biggest, oldest, and best-known gay legal and political groups issued the unprecedented warning that "premature lawsuits based on the federal Constitution" could be "ill-timed."
Signing onto the statement are Lambda Legal Defense and Education Fund, Gay & Lesbian Advocates & Defenders, the Human Rights Campaign, the National Gay and Lesbian Task Force, the national Freedom to Marry organization, Gay & Lesbian Alliance Against Defamation, the National Center for Lesbian Rights, the Equality Federation and the American Civil Liberties Union.
" [ W ] ithout more groundwork," according to the statement, "the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."
"You must be able to identify at least five justices ready and willing to rule for equality," said Freedom to Marry's Evan Wolfson, in an interview. "And given who sits on the Court today, we'd better create as much progress before then to help solidify a possible five."
"The key to winning any lawsuit is not just being right," said Wolfson, "and it's not just having good lawyers and writing good briefs. It's creating the climate of receptivity that enables and emboldens good judges to do the right thing."
Olson, in an e-mail exchange with this reporter, said he tends to agree "that an appropriately favorable environment is certainly helpful." But, he says, "no one can chart these things with any degree of precision or certainty," and that his legal team feels the case "can and should be brought at this time."
"And, of course, our clients are anxious for their constitutional rights to be honored, and believe that the federal courts should be ready to honor them," adds Olson.
To those questioning his motives, Olson, at the news conference announcing the lawsuit, said he hopes people "don't suspect my motives."
"We all have friends and family—I don't have a family member who's gay, but we all have friends and co-workers and neighbors [ who are gay ] ," said Olson in an interview with Karen Ocamb of Frontiers in L.A. magazine. "And they are citizens and they are our friends and they should be treated equally. And we have an obligation to stand up for them."
Olson noted that he has never supported any anti-gay marriage efforts and said he feels "very strongly that [ marriage equality for same-sex couples ] is the right position for America."
"I hope people will believe me."
He said he also believes there are five justices on the Supreme Court ready to vote the right way because there were six votes for overturning sodomy laws, via Lawrence v. Texas in 2003.
There is one handicap on this powerful federal lawsuit; however, though hardly a dark one. Should voters in California have the opportunity and impetus to overturn Proposition 8 at the ballot box, Olson acknowledges the Perry lawsuit will become moot—out of the race.
Has the race has been run?
Senator Charles Grassley, R-Iowa, doe not think the federal courts are ready to honor the constitutional rights of gay couples; he thinks the U.S. Supreme Court has already ruled on same-sex marriage and created a precedent that is binding.
During the confirmation hearing for Supreme Court nominee Sonia Sotomayor July 15, Grassley asked questions about Sotomayor's commitment to precedents—previous rulings of the high court—both generally and specifically as regarding "marriage law."
Specifically, he brought up the 1972 case, Baker v. Nelson, in which a gay couple sought a marriage license in Minnesota and, when denied one, sued in state court. The Minnesota Supreme Court dismissed the couple's appeal and they then appealed to the U.S. Supreme Court.
The Supreme Court also dismissed the couple's appeal. Dismissing an appeal is an action that has more significance than simply refusing to hear the appeal. The latter means almost nothing: The high court receives thousands of appeals every year and can spend time on only about 150 at best. Only about 80 or 90 produce actual opinions on matters of law; the other 50 or 60 are "disposed of" in some other fashion.
That's what happened with Baker; the supreme court dismissed the gay couple's appeal, explaining it was doing so because there was no "substantial federal question" presented by the case.
There is dispute within legal circles as to whether that dismissal in 1972 means anything today, but Grassley made clear he thinks it does. He said it means "the federal courts lack jurisdiction to hear due process and equal protection challenges to state marriage laws."
"Do you agree that marriage is a question reserved for the states to decide on Baker v. Nelson?" asked Grassley.
Sotomayor said that "is a question pending and impending in many courts," and she declined to offer her opinion at the confirmation hearing.
Grassley tried to push her on the issue, interrupting her and contradicting himself, saying he was asking "a very simple question based upon a precedent that Baker v. Nelson is based on."
"Are you saying to me that Baker v. Nelson is not a precedent?" asked Grassley.
Sotomayor again sought to deflect the question, saying she had not reviewed the case in some time and, "I actually don't know what the status is."
"If it is the court's precedent," she said, "…I will apply that precedent to the facts of any new situation that implicates it." She said she expects that, whenever a marriage case comes to the high court, one side will argue that Baker is precedent and the other side will argue the opposite."
The debate over the meaning of Baker is already playing out in Smelt, where the Obama Justice Department has argued that the Supreme Court's dismissal of Baker in 1972 benefits those who seek to uphold DOMA and "has precedential effect and is binding."
But DOJ is not likely to have the last word on that. Attorneys for plaintiffs challenging marriage bans will almost certainly seek to argue that Baker did no more than dispense with an appeal whose time, 37 years ago, had not yet come and whose place, at that time, was one state court.
The time and place have changed in 2009. Advancements in the LGBT civil rights movement have created a better track upon which to test the mettle of equal protection when it comes to marriage licensing. Lawsuits are coming from not just one state but from several. And the federal government has, through the Defense of Marriage Act, turned what used to be a state matter into a federal issue. In fact, some may argue DOMA has exacerbated a disparity among the states on how to treat same-sex marriage. And that disparity is just the sort of issue that attracts Supreme Court attention.
©2009 Keen News Service
