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Courting TroubleA story of love, marriage, and litigation strategy.

By Richard Thompson FordPosted Tuesday, June 1, 2004, at 4:40 PM ET

The California Supreme Court appears poised to hold that the City and County of San Francisco exceeded its delegated authority when it issued more than 4,000 California marriage licenses to same-sex couples earlier this year. Supporters of same-sex marriage will be understandably disappointed, but given the poor timing and framing of the dispute, this is probably the best outcome we could have expected.

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In a perfect world of Herculean judges, impervious to political fallout and immune to emotional appeals, it wouldn't matter how and when issues of social justice reached the courts; even unsympathetic litigants with bad timing would prevail if the abstract legal principle they sought to vindicate was just. But in the real world, timing and framing matter as much for civil rights as for garden-variety political fights.

Related in Slate

Richard Thompson Ford predicted woes for San Francisco's gay marriage proponents in this "Jurisprudence" from February.

Case in point: In Massachusetts, same-sex couples are now receiving valid marriage licenses. That's because in Massachusetts, unlike in San Francisco, proponents of same-sex marriage took their time and did what the civil rights lawyers who win cases usually do: They identified a sympathetic court and political climate, carefully selected a compelling plaintiff, litigated the constitutional issue in court, and secured a judicial victory. Indeed, Mary Bonauto, the attorney who led the litigation team in Goodridge v. Massachusetts Department of Health, put her fingers to the political winds and waited for years until she felt the climate was right to argue that the commonwealth's constitution required Massachusetts to issue marriage licenses to same-sex couples.

Advocates in San Francisco, by contrast, eager to beat Boston to the altar, blundered into court in the worst posture imaginable. Recall that San Francisco began issuing marriage licenses to same-sex couples based on the plausible but untested legal theory that the California Constitution requires it. By jumping the gavel and issuing the marriage licenses before a court could decide that issue, the city ultimately found itself in court with several avoidable handicaps.

1) The city's actions provoked the state attorney general to sue, handing the advantage to opponents of same-sex marriage by letting them—as plaintiffs—drive the litigation. Contrast Massachusetts, where the friends of same-sex marriage chose the battle and set the agenda.

2) Ideally the case would have involved a sympathetic gay couple with compelling personal circumstances that would highlight the injustice of California's "straights only" marriage laws. Not so in the California case. In fact, as its caption suggests, Lockyer v. San Francisco doesn't involve a gay couple at all; instead it's the city of San Francisco carrying the torch for same-sex marriage. This deprived the pro-marriage camp of potentially its most powerful weapon—a human face and story to move judicial and public opinion in its favor. Sure, judges are supposed to be immune to emotional appeals, but actually they are, believe it or not, human like the rest of us. And even those judges who are immune to human drama are not immune to popular opinion (especially in California where Supreme Court justices, like governors, can be recalled by popular vote—remember Rose Bird?). As law professor Michael Klarman points out, judges are not trailblazers: They typically forge ahead to create new legal rights only when public opinion is hard on their heels. Even the "activist" Warren Court was only a baby step out in front of national public opinion when it issued its famous civil rights opinion in Brown v. Board of Education. The best civil rights lawyers know that a plaintiff who captures the hearts and minds of the public can do a lot to indirectly influence the outcome of a close case.

3) Unlike the well-planned Massachusetts case in which the constitutional issue was front and center, the San Francisco contretemps raised a legal issue that had nothing to do with civil rights for gay couples: Can a local official essentially rewrite state law to conform to his own untested interpretation of a constitutional provision? The red flag was already in the air when the California Supreme Court declined to hear arguments on the constitutionality of the California marriage law altogether, instead limiting argument to the narrow issue of whether the city had exceeded its authority in issuing the marriage licenses. Many same-sex marriage supporters accused the court of ducking the real issue. But the court is not to blame. It's sound judicial practice to avoid confronting constitutional questions whenever possible. The city's actions raised a narrower, nonconstitutional ground on which to decide the case at bar—the court predictably and appropriately limited its deliberations to that ground.

And it's lucky for same-sex marriage proponents, too. Having failed to lay the groundwork for a successful case, it's not surprising they'll find California to be infertile soil for same-sex marriage. Had the Supreme Court heard the constitutional issue, it would most likely have held that the constitution does not require the state to allow same-sex marriages—a precedent that, once firmly established, would most likely endure for decades. Grasping for the gay rights movement's Brown v. Board of Education, they might have achieved its Plessy v. Ferguson. Because the court limited its deliberations to the narrow issue, the worst (and most likely) possible consequence will be a decision finding that the city exceeded its authority by issuing California marriage licenses in contravention of California law. This will not prejudice later and better-situated litigants from challenging the constitutionality of the marriage law directly.

No doubt many supporters of gay rights find all this hand-wringing about timing and strategy infuriating. We're talking about civil rights here. Justice delayed is justice denied. Did Charles Hamilton Houston and Thurgood Marshall wait around and test the political winds before litigating for racial justice? Well, actually, they did. Houston and other civil rights lawyers considered challenging public school segregation as early as the 1920s, but proceeded slowly and deliberately. The important civil rights victories of the 1950s and 1960s were the result of elaborately planned cases, with carefully selected plaintiffs, brought in venues with judges known to be sympathetic to racial justice.

So let's compare and contrast: By taking the slow and arduous path of careful, strategically savvy civil rights litigation, Massachusetts pro-marriage advocates secured a bulletproof victory and put their opponents on the run. Massachusetts Gov. Mitt Romney was forced into the embarrassing position of asking the court to delay the implementation of its marriage holding while the legislature drummed up support for a constitutional amendment—a request the court predictably, correctly, and unceremoniously rejected. Now, in a last-ditch attempt to keep Massachusetts from becoming the Las Vegas of same-sex weddings, the governor is threatening to apply a 1913 law denying marriage licenses to couples who could not be married in their states of residence. By exhuming this happily long-forgotten law, enacted to protect the antimiscegenation status quo of neighboring states from interracial couples who could legally marry in Massachusetts, the governor is proving one of the marriage advocates' central points: that opposition to same-sex marriage bears an uncomfortable resemblance to racism.

In San Francisco, by contrast, the controversy involves a city famous for its political arrogance and recklessness, overreaching its delegated authority and leaving uncertainty and chaos in its wake. A telling exchange began when one Supreme Court justice suggested that the court should invalidate the marriage licenses already issued in San Francisco to eliminate the present "legal limbo" for the involved couples and other parties who would not know whether or not to recognize the marriages. The deputy city attorney countered that the interests of the couples and the rights at stake justified the uncertainty that would continue while everyone waits for the constitutional issue to be resolved. This argument might have garnered sympathy had it been offered on behalf of one of the same-sex couples, but coming from the city it was basically just a "kick me" sign. Another justice thus predictably shot back, "Of course, it's the city that created this mess."

Whoever was behind San Francisco's ill-fated foray into the marriage thicket (it's unclear whether Mayor Newsom devised this move on his own or was persuaded or cajoled by local gay-rights activists) must have thought that civil rights are decided in some parallel universe of abstract principle and judicial virtue, where mundane political concerns like timing and issue framing don't matter. The city attorney argued that, based on the U. S. Supreme Court's recent invalidation of antisodomy laws in Lawrence v. Texas and the Massachusetts Supreme Judicial Court opinion in Goodridge, the mayor had concluded that the California Constitution must mandate same-sex marriage. But the U.S. Supreme Court was explicit that Lawrence has no significance for same-sex marriage. And last time I checked the map, San Francisco wasn't in Massachusetts. Indeed, as same-sex couples tie the knot in the Bay State, more than a continent separates Massachusetts and California—a strategy (or lack thereof) separates them as well.

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Richard Thompson Ford teaches at Stanford Law School and is author of The Race Card: How Bluffing About Bias Makes Race Relations Worse, now out in paperback.

Photograph of Alabama couple on Slate's home page by Brian Snyder/Reuters.

COMMENTS

Remarks from the Fray:

Right – you can't invoke the law in support of lawlessness, and the whole purpose of civil disobedience is to bring down sanctions upon yourself to dramatize the unfairness of the existing system.

By framing the issue as "Can the SF city clerk disregard the law?" the proponents guaranteed failure. The writer's comparison to the movement for African-American civil rights is appropriate. See Walker v. City of Birmingham, 388 U.S. 307, 87 S.Ct. 1824 (1967) (civil rights demonstrators who violated injunction properly held in criminal contempt, despite potential constitutional challenge to parade permit ordinance or even the injunction itself -- proper procedure was to challenge the injunction in court, not to disobey it). Of course, it brought us M.L. King's Letter From Birmingham Jail, so it wasn't altogether a bad thing. Compare Shuttlesworth v. City of Birmingham, Ala., 394 U.S. 147,89 S.Ct. 935 (1969) (reversing criminal conviction of one of the demonstrators in the very same demonstration).

--Ex-Fed

(To reply, click here)

…Thompson upholds the Goodridge case as a model for what gay rights activists SHOULD do: pick a sympathetic plaintiff and a good venue and go from there. But he completely ignores the potential downsides to that approach. The picture Thompson paints of the Goodridge decision is unrealistic, unpersuasive, and naive.

Remember that the Hawaii Supreme Court, in the early '90s, ruled that gay marriage had to be recognized. That case followed precisely the Goodridge pattern. But, as a result, Hawaii quickly amended its constitution to overrule its Supreme Court. Vermont, of course, took a middle ground: no to gay marriage, but yes to full civil unions. Other states (and the federal government) reacted to these decisions and passed Defense of Marriage Acts limiting gay marriages.

… it isn't clear that you stand any better chance of winning with the Goodridge strategy than the SanFran approach. San Francisco and a handful of other cities and towns undertook a different strategy: change the facts on the ground. Present the court with thousands of gay married couples and only THEN let the legal fight begin. Make the court tell the married couples that they aren't married….

…There is a strong argument that Newsom violated the Cal. Constitution by moving forward this way …Thompson is arguing that Newsom HURT gay marriage, and further that he should have known from the start. That's simply not true and not fair. Everyone knows that there will be setbacks before all of this gets resolved. But not every setback portends a big-picture loss.

Ultimately, whether we like it or not, the gay marriage issue will come to a head in courts, both state and federal. Challenges will assuredly come in different forms. Some cases will be like Goodridge; others will be like San Francisco; still others will be attempts in federal courts to get Mass. marriages recognized in other states through the Full Faith and Credit Clause. Some will be supported by mainstream gay rights organizations; but others will simply be individuals who want to push their rights and their agendas. Some will win and some will lose. So be it. That's how the public gets engaged, and how this argument ceases to be about "liberal activist judges" and instead focuses on the legal and social arguments.

--amosanon

(To reply, click here)

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