Leave a Comment Sagesse
Betting the Ranch – Let’s Not
July 3, 2012
This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.
Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Thursday, our own Vienna Hagen aka AnonyGrl sent us her take. Friday, Bill Santagata provided his thoughts. Monday, July 2, attorney Adam Bonin, front pager at Daily Kos on legal issues, gave his thoughts.
If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!
By Nan Hunter
The question that frames this symposium – whether it would be better for LGBT equality if the Supreme Court grants certiorari in Perry v. Brown – has an obvious answer: only if we win. If we lose, it would be a major setback . So the real question is, what are the odds that we would win in the Supreme Court? And what would “winning” look like?
The only victory that seems likely to me is an affirmance of the Ninth Circuit’s ruling that Proposition 8 is unconstitutional on grounds that apply only to California. But we don’t need an opinion from the Supreme Court to achieve this result. That is why the best possible outcome would be a denial of certiorari, which would lead to the reinstatement of an injunction against enforcement of Proposition 8.
My biggest fear is that the Supreme Court will grant review in Perry. I would bet that Justices Scalia, Thomas and Alito are salivating over the chance to weigh in with all the reasons why Proposition 8 is a perfectly fine constitutional provision. I fear that Chief Justice Roberts and Justice Kennedy may conclude that because a federal court has struck down a state constitutional provision on federal law grounds, it is the duty of the Court to consider the merits. Only four votes are required to grant certiorari.
Should certiorari be granted, the conventional wisdom is that Justice Kennedy will essentially determine the outcome, and I see no reason to call that prediction into question. Although LGBT folks correctly associate Kennedy with the pro-gay outcomes in Romer and Lawrence, the Perry case will strike a different chord for him, implicating one of his strongest beliefs: the rights of states.
Justice Kennedy describes our system as one of “dual sovereignty,” which means that states have equal authority with the federal government to make law unless there is a direct conflict necessitating one national rule. Will he find that there is no rational basis for limiting marriage to different-sex partners? If the case turns on the particular context of California law, maybe. If the effect of such a ruling would be to throw out the laws of 40-plus states, I doubt it.
When Romer v. Evans was before the Court, it was framed as a challenge to a provision unique to Colorado. Lawrence v. Texas involved an archaic and extreme law that imposed criminal penalties, a law that a super majority of states had already eliminated by state court rulings or state legislative action. Perry v. Brown will come to the Court as a horse of a different color.
For one thing, although opinion polls on marriage are shifting, they are not shifting at an equal pace at the state level, and thus our “dual sovereignty” system is not yet reflecting the changes. The resounding enactment of a ban on gay marriage in North Carolina is only one example. Political scientist Greg Lewis estimates majority support for gay marriage exists in about 20 states, most of which have not equalized their laws. Polls this year show only 35 to 40 per cent support for same-sex marriage in major states such as Ohio, Pennsylvania and Florida. Hopefully, voters in one or more of the four states where marriage is on the November ballot will endorse equality, which will mark a breakthrough in the politics of gay marriage. But the margins are likely to be close.
While the Supreme Court is not driven by poll results, the Justices nonetheless are quite sensitive to preserving the Court’s legitimacy in the eyes of the public and avoiding sweeping decisions on hot-button cultural issues if possible. For the progressive Justices, the biggest concern about “getting ahead of the country” is likely to be the risk of major backlash.
For advocates of equal access to marriage, the primary goal should be to keep driving up the levels of public support. For this issue, in this phase of its development, the let-each-state-decide dynamic is essential because it provides the space for change to happen gradually. Incremental change increases the public comfort level because it sends the message that the nation will be allowed to adjust to this alteration of a major social institution at its own pace.
Everyone understands that allowing state variability is a kind of structural compromise in the American political system – necessary now to ensure enough popular support to prevent calls for something like a federal constitutional amendment barring gay marriage, even if grating to the principle of immediate and complete equality, under all law, state as well as federal. But it is a compromise that will pay off in the long term. And unless something happens to derail the progress happening now– something like a Supreme Court decision endorsing marriage inequality for example – the long term may turn out to be, by historical standards, remarkably short.
–
Nan Hunter is a Professor of Law at Georgetown University and co-author of a leading law school casebook – Sexuality, Gender and the Law. She blogs at hunter of justice.
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
29 Comments Leave a Comment
1.
karen in kalifornia | July 3, 2012 at 9:22 am
You had me until " voters in one or more of the four states where marriage is on the November ballot will endorse equality". The outcome of the Minnesota antigay amendment election, no matter what the outcome, will not endorse equality. The best case outcome of that election will be not enshrining inequality and second class citizenship in the state constitution.
2.
Jamie | July 3, 2012 at 9:31 am
There is no way that an amendment to the federal Constitution banning gay marriage would get the required 2/3 approval of the State legislatures. That's frigging ridiculous and a rouse to scare gay people into cowering back in the closet. This whole essay seems to be a scare tactic, based profoundly on the rantings of the Catholic Church. Not terribly surprised to get to the end and find the author works for them.
3.
Sagesse | July 3, 2012 at 9:57 am
@
4.
Andrew | July 3, 2012 at 10:16 am
3/4th of state legislatures are required — the 2/3rds are the supermajorities of each house of Congress required. And since the latter could never be obtained, such a proposed amendment would never even reach the states. In fact, the issue couldn't even break filibuster in the Senate in 2006, an age ago in the era of the politics of marriage equality, and a time when there were 55 GOP Senators.
But I do agree with the author that there is more potential downside (a reversal) to the USSC hearing the case than upside (A Loving-esque marriage equality ruling).
5.
Scott Wooledge | July 3, 2012 at 10:28 am
Considering the Federal Marriage Amendment has been failing to advance in Congress when it was controlled by GOP and failed a vote twice I don't really understand why anyone takes it as a serious threat.
I just can't imagine it getting 66 Senate votes anymore. Even if Democrats lose control of the Senate next year. We'll still have 40-some Democrats and a handful of GOP from purple and blue states. One Collins and Kirk come out against it (and they would, the GOP's lockstep would crumble).
It is indeed, mostly just a boogeyman to scare people with, it can't get out of Congress or get ratified in 38 states.
6.
Scott Wooledge | July 3, 2012 at 10:33 am
I hate to say it, but SCOTUS fights are spectator sport, mostly. So saying, "Let's not" is a bit misleading. There's no "let's" here. The popular grassroots LGBT community doesn't get a vote. The Prop 8 ballot petitioners want and have asked for their day at the SCOTUS, as the system allows. Olsen and Boies have announced they'll argue against the motion to certify.
The rest of us just get to watch.
But there's good reason to hope that Olsen and Boies succeed in persuading the Nine Justices that the Appeals Court came to the right decision and there's no need to litigate this matter further. And you've articulated well some of them, thanks.
7.
Str8Grandmother | July 3, 2012 at 11:11 am
Georgetown = DC.
DC = legal same gender civil marriage
It is going to be generations until sexual minorities in North Carolina, Texas, Georgia, West Virginia, Indiana, Wisconsin, and the 30 States that have no anti discrimination protection at all, much less the pipe dream of politically won civil marriage. In all States needing the agreement of the legislators, the Governor and the populace, or at least 2 out of 3 will take more than one generation.
How many more years should a minority fight on the ground before they insist for Equal Protection through the Constitution? They have nothing now, and in the words of the song, If you got nothing, you got nothing to loose.
I think we should do what we are doing now, fight for the Civil Rights of sexual minorities both on the ground and in our courts.
8.
kevtrsk | July 3, 2012 at 11:54 am
We need to look at marriage equality through the eyes of the Loving case. Popular majority opinion had nothing to do with it. There is no rational basis upon which the state or federal government has to treat our relationships differently. Every argument from the proponents of traditional marriage has failed in court time and time again. Its time for the public to adjust to the realities of the equal protection clause of the Constitution. We are a republic with a bill of rights and a constitution. This is what needs to be enforced. This is what we are fighting for, and we do not stop fighting until we have met our goal of full equality.
9.
Andrew | July 3, 2012 at 12:26 pm
Nope, it's hopeless at all levels. It has never passed the House, it only got 49 votes (for cloture on debate) in the GOP Senate six years ago, and as for the states, well, it's easy to name 13 states that would never ratify such an amendment: VT, MA, CT, RI, NY, NJ, MD, CA, WA, HI, DE, IL, ME, NH (that's 14), and there are a few other states that would be real long shots to ratify — OR, NV, CO, MN, WI, NM, IA (as long as the Democrats control the state senate, anyway). The Federal Marriage Amendment ship sailed long ago.
But I do think there is significant risk that the USSC would overturn the Ninth Circuit ruling. Not a lot, but more than commensurate to the very slight chance that they'd do a Loving.
10.
Steve | July 3, 2012 at 12:52 pm
If only state constitutions were so hard to amend. It's ridiculous that most allow it by a simple plurality in a mob vote
11. Prop 8 Trial Tracker &raq&hellip | July 3, 2012 at 1:00 pm
[...] Betting the Ranch – Let’s Not [...]
12.
fromdamoon | July 3, 2012 at 1:04 pm
I don't think the author's mention of a constitutional amendment banning gay marriage was meant to be a scare tactic. She used it to discuss how our political system has many checks and balances that cause change to take place very slowly. That can be both good for us (protect against such an anti-gay amendment) and bad for us (waiting while so many states continue to deny rights to same-sex couples).
13.
jpmassar | July 3, 2012 at 1:09 pm
How many more years should a minority fight…
Well, a majority fought for something like 80 years before they got some measure of equality, and then it took another 50 years before they lost the battle for a constitutional amendment.
14.
jpmassar | July 3, 2012 at 1:11 pm
The problem is that you're stopped when the Supreme Court says you lose. At least for a long time. So fight smart, as well as steadfastly.
15.
jpmassar | July 3, 2012 at 1:13 pm
The author said
prevent calls for something like a federal constitutional amendment barring gay marriage
She did not suggest that such an amendment would actually have any chance of passing. I'm not sure why she is so concerned about 'calls for an amendment' but I don't see it reading as a scare tactic that such an amendment would actually pass.
16.
AnonyGrl | July 3, 2012 at 1:27 pm
The only thing I wonder is if she thinks that CALLS for it will somehow influence the Supreme Court's decision? I don't see that happening, though.
17.
Scott Wooledge | July 3, 2012 at 1:49 pm
72 years from the Seneca Falls convention in 1848, generally seen as the first big kick off for women's suffrage movement in America, until the final ratification of the 19th Amendment in 1920.
Just offered for perspective of another big civil rights movement in our country, in pursuit of a single legal right.
African American struggle is hard to parse to a single right as they segued from property in 1776 to the Civil Rights Act of 1964… It came in fits and start and parcels.
18.
Jamie | July 3, 2012 at 2:05 pm
Sorry, why else would they Author have mentioned it and insinuated that it was a possibility other than to scare people?
19.
Jamie | July 3, 2012 at 2:08 pm
some 70% of Americans disagreed with the Loving decision when it was issued. In fact, we didn't meet the the 50% approval threshold until 1990. 1990!!!!
20. Dodging the Supreme Court&hellip | July 3, 2012 at 2:25 pm
[...] is a portion of my guest post today at Prop 8 Trial Tracker, which is running an online symposium on the question of whether it would be better for the LGBT [...]
21.
Fr Bill | July 3, 2012 at 2:30 pm
I tend to agree with the author. Currently there is no split between Circuit Courts. The issue is probably one the USSC would prefer not to address unless forced to. Denying certiorari would be a way to duck the issue and let the issue develop further both socially and legally. That was the conventional wisdom but who knows now with the ideologically driven justices appointed by Reagan, Bush the father and Bush the son. It only takes four to put the case on the docket. Six of the nine are Roman Catholics and at least two of whom have made their stance on gay rights and "natural law" (aka social morality) quite well known.
22.
Adam Bink | July 3, 2012 at 4:20 pm
Feel free to submit a post for the symposium with this view.
23.
Str8Grandmother | July 3, 2012 at 4:46 pm
Fr Bill- "Denying certiorari would be a way to duck the issue and let the issue develop further both socially and legally"
"Developing socially" is much more difficult in some States vs other States. Please read parts of the official 2012 Platform of the Republican Party of Texas-
"Homosexuality ― We affirm that the practice of homosexuality tears at the fabric of society and contributes to the breakdown of the family unit. Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans. Homosexuality must not be presented as an acceptable “alternative” lifestyle, in public policy, nor should “family” be redefined to include homosexual “couples.” We believe there should be no granting of special legal entitlements or creation of special status for homosexual behavior, regardless of state of origin. Additionally, we oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction or belief in traditional values.
Traditional Military Culture – To protect our serviceman and women and ensure that America's Armed Forces remain the best in the world, we affirm the timelessness of those values, the benefits of traditional military culture and the incompatibility of homosexuality with military service.
6. Self-sufficient families, founded on the traditional marriage of a natural man and a natural woman.
STRENGTHENING FAMILIES, PROTECTING LIFE AND PROMOTING HEALTH
CELEBRATING TRADITIONAL MARRIAGE
Family and Defense of Marriage ― We support the definition of marriage as a God-ordained, legal and moral commitment only between a natural man and a natural woman, which is the foundational unit of a healthy society, and we oppose the assault on marriage by judicial activists. We call on the President and Congress to take immediate action to defend the sanctity of marriage. We are resolute that Congress exercise authority under the United States Constitution, and pass legislation withholding jurisdiction from the Federal Courts in cases involving family law, especially any changes in the definition of marriage. We further call on Congress to pass and the state legislatures to ratify a marriage amendment declaring that marriage in the United States shall consist of and be recognized only as the union of a natural man and a natural woman. Neither the United States nor any state shall recognize or grant to any unmarried person the legal rights or status of a spouse. We oppose the recognition of and granting of benefits to people who represent themselves as domestic partners without being legally married. We advocate the repeal of laws that place an unfair tax burden on families. We call upon Congress to completely remove the marriage penalty in the tax code, whereby a married couple receives a smaller standard deduction than their unmarried counterparts living together. The primary family unit consists of those related by blood, heterosexual marriage, or adoption. The family is responsible for its own welfare, education, moral training, conduct, and property.
Judicial Activism in Marriage ― We support marriage and oppose the assault on marriage by judicial activists.
Enforcement of the Defense of Marriage Act ― We support the enforcement of the State and Federal Defense of Marriage Act by state and federal officials respectively, and oppose creation, recognition and benefits for partnerships outside of marriage that are being provided by some political subdivisions.
24.
Mike in Baltimore | July 3, 2012 at 4:46 pm
"I hate to say it"
Then don't.
25.
Jay Jonson | July 4, 2012 at 6:26 am
I agree with the author that our best interest would be to have the Court deny cert to Perry v. Brown. That would allow marriage equality to prevail in California, the largest state. Meanwhile, the Court is likely to grant cert in Gill and Massachusetts and possibly Golinksi (the DOJ has just filed asking for cert in Golinski despite the fact that the Ninth Circuit has not yet ruled on it). Those cases are likely to strike down DOMA. When they do that, people who live in backward states (like me and my partner) will be able to travel to more enlightened states and be married; their marriages will not be recognized in their home states, but should be recognized by the feds. That would be a major step toward equal rights though, of course, it imposes a burden on us to travel and, ultimately, the Court will have to take a Loving-esque step to guarantee equal protection. But that step will not be taken in Perry. If Perry is granted cert, I fear that SCOTUS will either craft a narrow ruling upholding it in a way that applies only to California or strike it down on grounds involving state's rights. If the latter happens, we will be back at square one and will have to return to the polls.
26.
Mike in Baltimore | July 4, 2012 at 4:53 pm
As I was reading that article, I started to come to the conclusion that the author was trying to portray herself as a friend of the GLBT community, but actually is performing the equivalent of a Quisling or Petain – a 'friend' who actually is not, and is working for the other side.
The clincher for me was what you stated above.
27.
Mike in Baltimore | July 4, 2012 at 4:55 pm
Then why bring it up in the first place? And with NO further comment on whether it would be viable or not, and/or give reasons why it would or wouldn't?
28.
Mike in Baltimore | July 4, 2012 at 5:14 pm
So you are OK for a military couple to get married in New York, but when they are relocated to Texas, their marriage is not considered legal?
Or for a married heterosexual couple (one spouse in the military and one not) married in New York to receive moving and relocation expenses and support if/when order to move to Indiana or Mississippi or Florida or Texas or Wyoming, but a same gender couple in exactly the same circumstances to not get that aid and support?
Oh, and since when does religious outlook guarantee the political outlook of people? Seems that Congressman Walsh (a Catholic) has a VERY different political outlook than Congresswoman Pelosi (also a Catholic). Same with former Speaker Gingrich (a Catholic) and former Speaker Pelosi (also a Catholic).
By the way – I thought the Catholic church didn't allow people to divorce. Former Speaker Gingrich was married and divorced two times prior to his current marriage (granted before he 'converted' to the RCC faith). Former Speaker Pelosi is still on her first marriage.
My mother is a New Deal Democrat and eventually became a member of the Church of the Brethren. She married my second step-father, a Lutheran and someone who felt that Goldwater was much, much too liberal. Eventually, my step-father became an elder in the Church of the Brethren, and came to see that Goldwater actually WAS a very conservative politician, not the pragmatist that he tried to portray himself as.
Just a few examples of how religion means less than squat when politics or other issues enter the scene.
29.
Mike in Baltimore | July 5, 2012 at 1:23 am
Wasn't it just a plurality in 1990, then when polled again in 2000, that's when the majority showed in the polling?
And I'd bet the concept would be defeated in many, even most states today. People are not always known to tell others the truth, the whole truth and nothing but the truth (especially when the other is a pollster who is polling on social questions like this).
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