Beth's Blog - Prop 8 Case Presents Educational Opportunities, Potential Future Risk

Most of you have probably heard by now that the trial in the California court challenge to Proposition 8 begins today.  It's expected to take two weeks.  Stay tuned -- it should be interesting, and will no doubt provide helpful opportunities for public education.

I expect we'll be reading and hearing a lot about the trial over the next few weeks.  It's a great educational opportunity!  The more Americans learn about the realities of our lives, the sooner we'll have full equal rights.  The case is drawing even more attention than it otherwise might because of the identity of the lead lawyers representing the gay couples.  Former Republican Solicitor General Ted Olson, a respected conservative on many issues, and David Boies, a prominent liberal, last faced off in the case of Bush v. Gore.  That human interest angle has attracted a lot of media.  It also demonstrates that the values of freedom, family, and equality don't belong exclusively to the liberals or the conservatives, the Democrats or the Republicans.

Most, but not all, of the state court marriage cases have proceeded without an actual trial, so this process is atypical.  Rather than relying on briefs and articles, the parties in this case will present testimony and expert evidence regarding some of the factual issues that underlie the legal analysis in this case.  Are same-sex relationships as stable as heterosexual relationships?  Do gay, lesbian and bisexual people have enough political power to rely on the majoritarian political process to protect their rights?  For the next two weeks a United States District Court in California will hear evidence about these and other issues before deciding whether California's state constitutional ban on same-sex couples legally marrying (aka Prop 8) violates the United States Constitution.

The case is also unusual insofar as this is the first time in the modern freedom to marry movement that parties have posed a credible federal constitutional challenge to laws prohibiting same-sex couples from marrying.  Thus far, all of the cases in the past two decades, from Hawaii through Iowa, have focused on state law constitutional challenges.  That isn't a coincidence.  State constitutions provide independent and meaningful constitutional rights.  Decisions of state supreme courts regarding their own state constitutions also are not appealable to the United States Supreme Court, since state supreme courts are the final arbiters of their own states' constitutions.  This case, by raising claims under the United States Constitution, could potentially land in the United States Supreme Court -- for better or for worse.

Therein lies the controversy.

Many advocates in the freedom to marry movement, myself included, have expressed concerns about the timing of this case.  After studying the course of court cases and legislative reforms regarding laws banning interracial marriage, as well as our own movement's history with sodomy law reform, many have concluded that to take a case to the present United States Supreme Court at this time, before a critical mass of states have been persuaded through courts or legislation to eliminate their bans on marriage between same-sex couples, presents unacceptable risks.  You don't get two bites at the Supreme Court apple in a decade.  In fact, we had to wait 18 years after the devastating loss in Bowers v. Hardwick (upholding sodomy laws as applied to same-sex partners) before the United States finally reversed course in Lawrence v. Texas.  During the intervening time, countless gay parents lost custody of their kids, or were denied parental rights, because the United States Supreme Court had endorsed their being labeled as felons.  We learned the hard way that when you lose before the United States Supreme Court, you're stuck with that decision, and its ramifications, for a good long time.  That's why many, including me, don't want to go to the United States Supreme Court on the marriage issue prematurely; by doing so, we risk setting back the movement by a generation.  (Of course, if you win, you're a hero.) 

That said, the trial has begun.  I hope for nothing but the best for the parties, and our movement, in this trial.  I hope if and when presented with decisions about appealing, the lead lawyers and parties in this case will think long and hard before taking this to the United States Supreme Court.  In the meantime, the fact of this court case lends even greater urgency to our efforts, all across the country, to do the vital grassroots work necessary to make it possible, and indeed probable, that the United States Supreme Court will do the right thing the FIRST time around on this issue.