Alex Blaze

Federal case to overturn Prop 8

Filed By Alex Blaze | May 27, 2009 12:00 PM | comments

Filed in: Marriage Equality, The Movement
Tags: American Foundation for Equal Rights, gay marriage, Guantanamo Bay, lesbian, marriage, Ted Olson, torture

The Advocate is reporting that a new org, the American Foundation for Equal Rights, has filed a federal equal protection suit to overturn Prop 8, and, as Salon is reporting, to overturn marriage bans everywhere.

I'm sure we'll find out more about this later, but for now the whole thing sounds kind of fishy to me. We're talking about a brand-new, non-LGBT org that got two big-name straight lawyers to file a case they'll probably lose. And I'm not saying that because I doubt their legal skill, but because, the way I see it, they will have four automatic votes against them in Alito, Roberts, Thomas, and Scalia, and I could very well imagine two or three of the others rejecting a rather expansive claim under equal protection.

I was saying the same thing about GLAD's challenge to the DOMA, and their equal protection claim is far less expansive than this new one. And considering how little information we know about the "American Foundation for Equal Rights," it's justifiable to speculate about their angle.

One of the lawyers, conservative Ted Olson, says it's about people having their day in court:

"For a long time I've personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals," Olson said in an interview with The Advocate. "The individuals that we represent and will be representing in this case feel they're being denied their rights. And they're entitled to have a court vindicate those rights."

Really? Really, Ted Olson? You were arguing not too long ago that people don't, in fact, have a right to vindicate their claims in court when you were explaining why Guantanamo detainees had no right to even be charged with something while they're being detained indefinitely, much less have the right to a trial.

He's also a torture apologist who thinks that people who ordered torture that ultimately led to about a hundred people dying shouldn't have to be investigated, much less prosecuted. Apparently those people who were victims of the mini-Pinochets known as the Bush administration shouldn't have their day in court either.

Of course, Olson is being compensated, although the Advocate article doesn't say how much. To retain a lawyer of that caliber who most likely doesn't believe in the cause, though... well, it goes to show the kind of resources we're willing to spend on marriage but not on other issues, is all I'm saying. That is, if the "American Foundation for Equal Protection" is an LGBT organization.

But, well, I wish them luck. Because they sure will need it, as the precedent they'll likely set, should they or the homophobes pursue this to the Supreme Court, could come back to haunt the rest of us.

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Thanks, Alex, for your well-placed and well-expressed skepticism about the sudden and utterly unexpected appearance of our new best friend Ted Olson, Mr. No Trials for Gitmo Detainees, Mr. Torture is OK By Me. With friends like Olson, who needs enemies? Olson and his new best friend Bois are, of course, lawyers for hire. And who is hiring them? On the American Foundation for Equal Rights, there is exactly zero information about this brand new "friendly" organization: no staff, no board, no real mission statement. Just press info about their brand new federal law suit. The plaintiffs seem like ordinary Joes and Janes, but I gotta wonder who drafted them and who is really running this operation. John Aravoisis was creaming his pants over this development on his blog, like we should all be throwing flowers at Olson and Bois. Yeah, just like the Iraqis did after our friendly little invastion!

John Schmacker | May 27, 2009 3:49 PM

This is fishy. At the same time the national GLBT organizations, including Lambda Legal, are hoping to avoid bringing the marriage equality question to the US Supreme Court until the composition of the court changes, this phantom organization is pressing this very move. They could be wolves in sheep's clothing. Their intent could be to get the court to kill marriage equality now rather than giving us the time to approach the court in a more reasonable way. Time is, after all, on our side. But a negative decision by the USC would bring the whole process to a halt. We need to find out who these people are!

Add this to your skepticism: the major LGBT rights orgs are all saying "thanks guys, but we don't really want this kind of help."

Thanks for your comments, all.

I'm not saying that this will necessarily be bad, and I wanted to write something positive about them a la aravosis when I first heard about this. But the more I searched for information about this the fishier it seemed.

Like Sue pointed out, they don't have much on their site or facebook page to go by. The Task Force, HRC, Lambda Legal, etc., no matter what we think about any of these groups, all explain where they're coming from, who works their, what they've done in the past, their politics, etc. The website for the "American Foundation for Equal Rights" is surprisingly bare.

I don't think Aravosis is right to have, as Sue so colorfully put it, "creamed his pants" over Olson. The dude works for a living and he's being paid. Our skepticism should reside with the Foundation.

John points out that Lambda Legal actually discourages these sorts of lawsuits, and they're right. They can lead to bad precedents if they lose and, considering Lambda Legal's track record, they have a place to talk on this subject.

Thanks for the link, Sam. I didn't know that they had already responded.

Don Sherfick Don Sherfick | May 27, 2009 10:43 PM

I'm a little confused here. Although I tend to agree that the suit is premature in light of the current makeup of the U.S. Supreme Court and a more conservative federal approach to equal protection analysis, I keep seeing all these folks chanting and carrying signs saying: "We Want Full Marriage Equality, and We Want It NOW". And not a small number who would denounce as a demonic incrementalist anyone daring to say that perhaps the intermediate step of civil unions might in some instance be a little exercise in patience and prudence.

So this may be a lesson in "be careful of what you wish for". And a shame if it is.

Lawyers work for their clients, not themselves. Olson worked for Bush, he argued on behalf of the Bush administration, that doesn't necessarily mean he believed what he was arguing. A good lawyer still represents a murderer and mounts the best defense even if he believes the murderer is guilty.

More and more conservatives are coming on board. I choose to look at this with optimism. Besides, the CA Supreme Court decision left the door too wide open for abuse by the majority against any minority. The only way to get that overturned is by the Federal Guarantees of Equal Protection.

I have a very different perspective.

With the passage of the 14th Amendment to the U. S. Constitution in the aftermath of the Civil War, and the passage of women's suffrage, there has been no legal basis for any group or individual to be treated as a second class citizen before the law.

This includes all of us in the LBGT Community. We are either citizens of these United States, or we are not. That is what the "Equal Protection Clause" of the U. S. Constitution is all about.

In Brown vs. Board of Education the Supreme Court struck down the concept of "separate, but equal", and that precedent can be used in the Prop 8 case.

Another benefit to the case could be an injunction against Prop 8 becoming law, in which case same sex marriage would again be legal in California.

I think it is premature to judge the motives of the Plaintiffs in this case.

Equal rights have historically always been granted more readily through the courts, than through the legislative process.

"four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back..."

aren't these some of the same groups that sued CA for marriage, thus ushering in Prop 8? Good advice, guys.

NCLR was the org that won that case, and there are 8 other orgs that signed on to that statement. So, no.

But also, let's not perpetuate the myth that Prop 8 was a response to the Court's decision in re Marriage Cases. It's factually incorrect as signatures for Prop 8 were signed, sealed, and authenticated by April 2008, and the decision was in May. It's also being used by the right wing to make it seem like they were the "victims" of judicial activism in California and to make their movement seem populist, instead of the homophobic and discriminatory campaign that it was.

I think the proposed lawsuit is extremely ill advised. While I believe that Prop 8 violates the equal protection clause of the United States Constitution, it is also equally clear that, under the current state of the law, Olsen & co. have an uphill battle argument. Federal law currently permits a state to distinguish between two classes of citizens in its law if it has a rational basis for doing so. If, and only if, the subject of the law touches on a fundamental right or burdens a suspect class of persons, then the state must show that it has a compelling state interest in doing so. In the Goodridge case, in Massachusetts, the court said that such a distinction lacked any rational basis. In the California case, the court said that it did have a rational basis, but that sexual orientation is a suspect class, and the state did not have a compelling interest in making the distinction.

The federal courts have generally refused to find sexual orientation a suspect class and there is little chance that the US Supreme Court would do so. Therefore, advocates are left with the argument that California's distinguishing between straight and gay couples lacks all rational basis. There are a couple of US Supreme Court cases that seem to suggest that this is sometimes true, but in very different contexts. There is Romer v. Evans, which said that Colorado couldn't have a law prohibiting cities from having a gay rights ordinance. They said such a distinction was simply born of animosity and is not a rational basis for legislation. The difficulty with applying this to the marriage cases is that marriage inequality advocates have smartened up and made a clear effort to base its arguments on pro-straight arguments, and not anti-gay arguments. So any new case would be quite different from Romer.

There is Lawrence v. Texas, which said that Texas couldn't have a law making gay sex unconstitutional. They implied that such a distinction was irrational, but then switched gears and said that the law violated the right to privacy of gay people. The Lawrence opinion specifically stated that its conclusion did not necessarily apply to marriage equality, though others have argued, nonetheless, that it could. The right to privacy is a very different concept from equal protection, and the right to privacy has never been an argument pursued by marriage equality attorneys.

I'm not saying that such a case could never succeed. Just that I'm not convinced that it has more than a fifty-fifty chance. Given that there has been progress on the state level, why create a chance that the Supreme Court would rule that bans on marriage equality doesn't violate the US constitution? When and if the composition of the Court changes, a later court could not easily undo the damage by overruling itself only a few years later and even Justices sympathetic to the cause would be reluctant to undermine Court authority by doing such a quick switcheroo on legal principles. While states advocates could argue that a bad US Supreme Court case should be ignored by the states on the grounds that their state constitutional equal protection clauses go beyond the federal equal protection clause, that would add an additional hurdle to an already fraught case.

What's the hurry? Haven't you ever heard of incrementalism?

Don Sherfick Don Sherfick | May 28, 2009 8:07 AM

Thank you for that explanation, Dr. Weiss. Unfortunately, all too many in our community have recited the term "equal protection" over and over again that they think all that needs to happen is that the reluctant justices on the U.S. Supreme Court will say "Golly, that's so self evident....why didn't we think about that before".

It simply doesn't work that way in the real judicial world. Sorry that you are likely going to be crucified for having the term "incrementlism" in your learned vocabulary.

Don Sherfick Don Sherfick | May 28, 2009 8:51 AM

It would also seem to me that a federal equal protection case might have a better chance if, instead of focusing on the "separate but equal is not equal" criticism of civil unions, it sought a more modest declaration that one cannot simply justify bestowing a myriad of federal and state benefits on one group of couples but not the other based simply on whether or not their personal plumbing matches. Saying that there is a rational basis to restrict "marriage" to heterosexual couples on account of procreation, is one thing, dubious as it is. But then to take the huge leap and saying that all kinds of things like the ability to file joint tax returns, inheritance tax exemptions, which have absolutely nothing to do with procreation, can still be restricted only to the married, seems to be something else entirely. Perhaps there might emerge a new type of analysis that says in effect: "The state can differentiate between same sex and opposite sex couples only in those particular things in which it can demonstrate a compelling connection between the right, benefit, obligation, etc., on procreation."

In other words, we currently have a situation where once limiting marriage to heterosexual couples is justified, the inquiry ends, and all related benefits rise or fall, rather than being analyzed on their own merits. More involved, perhaps, but once people begin to see that all but arguably only a tiny handfull of these have nothing to do with the "procreative connection", a more favorable result will be obtained.

Bob Roehr | May 28, 2009 11:44 AM

Try watching the video of the news conference announcing the lawsuit, which is already filed. It has been up for almost a day

They base their arguments on what the Court has said about marriage, starting with Loving, and don't fall into the trap of relying on Romer and Lawrence simply because those were the "gay" cases in the past.

After watching the video, I think most folks will find it difficult to question the motives of those involved.

Don Sherfick Don Sherfick | May 28, 2009 1:35 PM

You know, Bob, I just finished watching the conference, and although I still think the federal filing is premature, also find it hard to question motives. Olsen in particular may be just familiar enough with what appeals to Justice Kennedy, and perhaps Justice Roberts (who himself advised pro-LGBT forces on the overturning of Colorado's Proposition 2 in the Romer case)to just pull it off.

And the statements in the conference about justice delayed for any couple being justice denied was powerful enough to convince me to take back what I said about about those yelling "NOW".

I thought the arguments in the video had legal merit, but it is quite unclear at this point that the US Supreme Court would credit them.

Loving v. Virginia is only applicable if sexual orientation, like race, is a protected class. As the Court said in Loving, "The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States." Racial discrimination, but not sexual orientation discrimination. The federal courts in the new case, Perry v. Schwartzenegger, would have to rule that sexual orientation is a protected class if the Loving principle is to apply.

The reference in the video to allowing prisoners to get married, though poignant in comparison to the non-rights of gays, is also of questionable applicability. That case, Hodgson v Minnesota (1990) simply acknowledged that the pre-existing fundamental right of heterosexuals to marry is applicable to prisoners, though not to the extent that granting of such right infringes on any valid penological interest.

As far as I can tell, these lawyers, though sincere enough, are not doing this for free. They are going to be well compensated. Their law firms are high-end firms where fees are in the $400/hr range. This does not invalidate their sincerity, but it means they are being paid to be partisan. They are not to be taken as objective commentators on the law of the case, but as partisan advocates whose job it is to do their damnedest to persuade the public and the courts that their clients' cause is right. The courts may or may not agree. Don't confuse sincere partisanship with objective, clear-eyed analysis.