Ted Olson and David Boies' gay marriage suit.

The law, lawyers, and the court.
May 29 2009 11:25 AM

Sit Down, Ted Olson and David Boies

Let the states experiment with gay marriage—it's not time yet for a federal lawsuit.

Gay marriage. Click image to expand.
A lesbian wedding

Adversaries in Bush v. Gore, Ted Olson and David Boies are a power couple of super-lawyers supporting same-sex marriage. Dismayed that California voters overrode their state Supreme Court's guarantee of marriage equality for lesbian and gay couples, Boies and Olson have brought a federal constitutional lawsuit to invalidate the voters' action.

This is a brash, bold move to nationalize marriage equality and raise the stakes of the debate. We recently published a book potentially supporting such boldness. The U.S. Constitution supports marriage equality as a logical matter. As supporters of committed relationships, traditionalists themselves ought to find room in their hearts to embrace rather than scorn marriage equality, perhaps the deeper point Ted Olson is trying to make.

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In our book, however, we ask whether this is an idea whose time has come at the national level. The nation remains evenly and intensely divided on the issue of marriage equality. And so we continue to think that the answer is no. This is not the moment for federal judges to step in and close off discussion. Why not continue with the state-by-state process of debate, experimentation, and slow but increasing movement toward marriage equality?

Also relevant to the merits of bringing the California challenge now in federal court are the long odds against success. Five of nine current Supreme Court justices are conservative Republicans. In 2000, five justices said that the Boy Scouts could exclude gay people and even struck down a state law barring such discrimination. Their reasoning was that a private group has a First Amendment interest in expressing an anti-gay identity and that the government could not censor that expression. Yet when universities asserted the same freedoms to express their pro-gay identity by treating anti-gay military recruiters differently from other recruiters conducting student interviews, a unanimous Supreme Court ruled against the universities.

In short, this is not a court that leaps to defend full constitutional equality of gay people.  To be sure, the court in 2003 did invalidate Texas' consensual sodomy law for violating gay people's privacy rights. Yet Justice Anthony Kennedy's gay-tolerant majority opinion in Lawrence v. Texas emphasized that only 13 states still had such bans against consensual sodomy and that other countries, as well as most states, had reached a substantial consensus that such laws violate constitutional privacy rights. There is no such consensus, either internationally or nationally, in favor of gay marriage. More than half the states, including California, have constitutional amendments explicitly barring same-sex marriages. In 1996, President Clinton endorsed, and most congressional Democrats voted for, the Defense of Marriage Act. The five states that recognize gay marriage—Connecticut, Iowa, Maine, Massachusetts, Vermont—are still pioneers. And four Supreme Court justices probably think that the court should not have invalidated the Texas law in Lawrence.

The bottom line is that even the moderate justices would be disinclined to require marriage equality today or even three years from now. By then, more states will have recognized same-sex marriages, but it is unlikely they will be anywhere close to a majority. Consider this parallel. In the mid-1950s, when 30 states still had laws barring people of different races from marrying, the liberal Warren Court refused to overturn this blatant race discrimination. The court did not act until 1967, when only 17 states retained such laws. So long as interracial marriage intensely divided the country, the Warren Court was not prepared to insist upon a norm of equality. Would the current moderates on the Roberts Court be any bolder? It's hard to imagine.

Perhaps Olson and Boies are hoping that the relatively liberal U.S. Court of Appeals for the 9th Circuit will uphold marriage equality and that the Supreme Court will then duck the case, allowing the appellate ruling to stand. It is not entirely clear, however, that the 9th Circuit itself will go along with such a strategy, because of the expected backlash.  Any decision by that court would apply not only to California but also to culturally conservative Idaho and Montana. And even in California, after all, voters banned gay marriage when they passed Proposition 8 in November, the reason for the federal suit in the first place.     

Should constitutional rights be withheld out of fears of backlash and reversal? Not necessarily. We should be bold and insistent, as Thurgood Marshall was in pressing civil rights claims in the 1940s and '50s. But Marshall was also strategically smart. He did not press his case for school desegregation and interracial marriage until his allies had local victories all over the nation (including Maryland in the South), dedicated allies within the executive branch, and a receptive audience among the justices.

We are confident these victories are coming for advocates of same-sex marriage. California will surely soon again make history within the next few years, when its voters overturn Prop 8 and recognize marriage equality. When the state-by-state experiment with gay marriage becomes more the norm than the exception, the constitutional argument for same-sex marriage will become just as clear to the justices of the Supreme Court as it is for Ted Olsen and David Boies.

Yale law professor William Eskridge and attorney Darren Spedale are the authors ofGay Marriage: For Better or for Worse? What We've Learned From the Evidence.

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