Kenji Yoshino

Ted Olson’s Supreme Court Adventure
By The Editors, The NY Times “Room For Debate”

Many were surprised to hear that Theodore B. Olson, a conservative luminary and President Bush’s solicitor general, filed a federal lawsuit to challenge California’s Proposition 8, the law banning same-sex marriage. Some on both sides of the debate have even questioned his motives.

For his part, Mr. Olson has expressed his hope that the lawsuit (in which he is partnering with David Boies) will lead to a ground-breaking Supreme Court decision — like Brown v. Board of Education or Roe v. Wade — legalizing same-sex marriage nationwide.

Is this the right time to go to a conservative Supreme Court with such a controversial issue — one that even President Obama has shied away from?

Eugene Volokh, U.C.L.A. Law School
Kenji Yoshino, N.Y.U. School of Law
Amy Wax, University of Pennsylvania Law School
Evan Wolfson, Freedom to Marry

Not Now
Eugene Volokh is a professor of law at the University of California, Los Angeles, and a former clerk for Supreme Court Justice Sandra Day O’Connor. He is the founder and co-author of The Volokh Conspiracy blog.

Is it sensible for gay rights advocates to ask the U.S. Supreme Court to recognize, in the next few years, a federal constitutional right to same-sex marriage?

It is unlikely that the Supreme Court would invalidate the laws of more than 40 states.
I doubt it, because I doubt five justices will agree with the claim. Some justices — probably at least four and maybe five — probably think the opposite-sex-only marriage rules are clearly constitutional, because nothing in the constitutional text or our nation’s traditions prohibits such rules. And even some of the justices who might be open to a different view are unlikely to want to invalidate the laws of more than 40 states.

In 2003, the Supreme Court did overturn sodomy laws, but those laws had by then already been repealed in 37 states, and were rarely enforced in the rest. The court stressed that in its decision, because it has long looked to traditions and to contemporaneous legislative and executive judgments in interpreting the Constitution, especially when the text is not clear.

The court’s 1967 decision striking down bans on interracial marriages likewise pointed out that only 16 states had such bans. Moreover, such bans were never dominant in Western legal tradition; and the Equal Protection Clause had long been understood as casting doubt on race classifications. Here, both tradition and contemporaneous national judgment largely favor the opposite-sex-only rules. I suspect that even some of the liberal justices wouldn’t want to strike down such a national consensus based on at best ambiguous constitutional text.

Even if the goal is to keep the issue in the public eye, and persuade voters and legislators, I suspect more people will be alienated by the attempt to use judges to reverse the nationwide popular will than will be persuaded by the public airing of the arguments. In a few decades, things might be different. But today, I doubt the lawsuit does much to advance gay rights.

          Kenji Yoshino is a professor at N.Y.U. School of Law and the author of  “Covering: The Hidden Assault on Our Civil Rights.”

 Lessons From a 1956 Case

In asking whether it is premature to take the issue of gay marriage to the United States Supreme Court, we should shift our attention from Loving v. Virginia, the 1967 case that struck down bans on interracial marriage, to the less famous case of Naim v. Naim. Those who support the Olson/Boies suit correctly argue that as matter of logic, the principles undergirding Loving ought to press the court to invalidate bans on same-sex marriage.

Pro-gay opponents of the Olson/Boies suit counter, equally correctly, that the court decided Loving against a more supportive political backdrop. Only 16 states banned interracial marriage in 1967, while 44 states ban same-sex marriage today.

Given the canonical status of the Loving case, it is understandable that both sides would focus on it. But Loving was not the first time the Supreme Court faced the issue of interracial marriage.

In the wake of Brown v. Board of Education in 1954, the court was confronted with Naim v. Naim, which concerned a challenge to the Virginia ban on interracial marriage, which was later struck down in Loving. The court was in the midst of issuing a burst of opinions extending racial integration from public education to other state-run institutions like public parks and transportation. Nonetheless, in 1956, the court avoided a decision in Naim, deeming the issue of marriage too socially contentious.

The 2003 Supreme Court case of Lawrence v. Texas, which decriminalized sodomy in this country, is often described as the Brown of the gay-rights movement. If we carry the analogy, the Olson/Boies suit looks more like Naim than Loving. In 1956, slightly more than half the states banned interracial marriage, a political landscape closer to the one we have regarding same-sex marriage today.

The analogy is important because many gay-rights organizations have criticized Mr. Olson and Mr. Boies, who are not gay-rights litigators, as rogue lawyers who brought the case too soon. Yet as Naim shows, lawyers are not the only ones who control the timing of cases in the Supreme Court. Unlike the lower federal courts, the Supreme Court has discretionary review, which it grants in less than 5 percent of cases.

To be sure, if some attorney had not brought the case, the court would not have been permitted to consider it. But in this litigious age, it was only a matter of time before someone made a federal case out of same-sex marriage. And if I were to choose two private lawyers to go “rogue,” I would pick these two.

If this case is decided on the merits, I hope the court will follow Loving. But the court cannot be insensible to the widely expressed sentiment that the timing here may not be right. If the court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim.

Waiting for a Track Record
Amy L. Wax is a professor at the University of Pennsylvania Law School and the author of numerous articles, including “Traditionalism, Pluralism and Same-Sex Marriage,” 59 Rutgers Law Review (Winter 2007).

As a matter of Supreme Court practice alone, the issue is pretty simple. As far as I am aware, no lower federal court of appeals has held that the federal Constitution mandates the recognition of same-sex marriage and few state courts have even considered this question.

Certainly, no court has relied on the federal Constitution to invalidate the federal Defense of Marriage Act (DOMA), which permits states to ban same sex marriage and the federal and state governments to refuse to recognize same-sex marriage. On June 12 the Department of Justice issued a brief defending the constitutionality of DOMA in the case of Smelt v. United States of America, disappointing the hopes of gay activists that the Obama administration would seek the repeal of the statute. It is unlikely that the administration will take steps to challenge the law’s constitutionality anytime soon.

The constitutional question of same-sex marriage is so difficult that the Supreme Court would be well-advised to build on the reasoned consideration of lower appellate courts.
The Supreme Court generally refrains from deciding federal constitutional questions until federal courts of appeals and/or the highest courts of the states have thoroughly reviewed the constitutional issue and have come to differing conclusions. Departure from this rule is exceptional. The legality of California’s Proposition 8 does not justify an exception, as the California’s highest court upheld the state’s ban and no other court has ruled on the issue.

To date, the only decisions recognizing a same-sex marriage right have been based on particular state constitutions and none have relied solely on the federal Constitution to grant that right.

The constitutional status of same-sex marriage is such a difficult legal question that the Supreme Court would be well-advised to build on the reasoned consideration of the federal courts of appeals, perhaps with the assistance of highest state courts addressing the status of same-sex marriage and/or the legality of the DOMA under the federal Constitution. The lack of a judicial track record on this complex issue is good enough reason to refrain from considering the validity of California’s Prop. 8.

How to Make the Timing Right
Evan Wolfson is executive director of Freedom to Marry, and author of “Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.”

If the question is “Should the Supreme Court strike down the cruel and discriminatory exclusion of committed same-sex couples from marriage, an exclusion that serves no legitimate government interest?,” the answer is yes — and as soon as possible for couples who are doing the work of marriage in their day-to-day lives and who share an equal need for the protections and responsibilities marriage brings.

If the question is “Is now the right time to rush a case to the Supreme Court?,” I would draw on my own experience as the attorney who argued before the court in Boy Scouts of America v. Dale and participated in many other gay rights and other civil rights cases, including the case that ended race-discrimination in jury selection.

To create the right climate for winning in the Supreme Court, win the freedom to marry in more states.
The first rule of Supreme Court litigation, I learned, is count to 5. If you don’t have a pretty strong sense that you are likely to be able to persuade and empower five justices to rule right, then why rush to a result that could be harmful?

The reality is, there are several freedom to marry cases already making their way through the courts, in addition to the case against Proposition 8 brought by Ted Olson, and his adversary in Bush v. Gore, David Boies. These include the challenge to the so-called “Defense of Marriage Act” brought by married couples represented by Gay & Lesbian Advocates & Defenders (GLAD), which won the Massachusetts and Connecticut freedom to marry cases. The Attorney General of Massachusetts also filed a suit on behalf of the state’s interest in not being forced to discriminate against its own married couples.

So in that sense, the question, “Is this the right time?” is no longer pertinent. The more important question is, “How can we assure that when a case reaches the Supreme Court, the court is ready to do right?”

The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

That means winning the freedom to marry in more states and winning over more hearts and minds. If the Supreme Court sees that the lived experience of gay couples marrying means families helped and no one hurt, that the rationales offered up to defend discrimination are false, and that the momentum in America is toward inclusion, then the timing may indeed prove right for the justices to do right. The opportunity to use the time between now and the day it’s turned over to the justices is very much in our control. Since that day may come soon, let’s start talking now to the people we need to persuade (see www.freedomtomarry.org), and make the timing right.