By Sam Singer
What strikes me as extraordinary about the gay rights movement, particularly its subsidiary cause in the campaign for marriage equality, is the discipline with which its scattered membership marches in lockstep. Everyone seems to appreciate the thrust of the operation, which is at bottom a state-by-state voter drive. On the less common occasion when the movement spills into the courtroom, litigants are advised to scrub their complaints of anything that could be mistaken for a federal claim. In this way, the movement localizes the effect of unfavorable court decisions. What happens in California stays in California, and so forth. At least that was the idea.
It turns out the movement hadn’t spent enough time surveying its own backyard. Late last month, hours after California’s high court dismissed a last-ditch challenge to Proposition 8, the American Foundation for Equal Rights (AFER) announced it would challenge the constitutional amendment in federal court. This normally wouldn’t be cause for alarm. Most litigants proceeding without the support of the major stakeholders would not have pockets deep enough to make much noise. But AFER isn’t your garden variety litigant. AFER cropped up solely for the purpose of bringing this challenge. Comprising its board is a group of Hollywood’s most well-heeled and outspoken gay rights advocates. And if there was any question as to the organization’s resolve, the board dispelled it when it retained Ted Olson and David Boies as co-counsel. Apparently, AFER wasn’t content with just one of the nation’s top constitutional lawyers.
In a press statement opposing the suit, the director of the ACLU’s LGBT project encapsulated the concerns of leading LGBT groups when he cautioned that “successful change involves building blocks.” His point is well taken. As a moral leader, the Supreme Court resembles the pear-shaped kid in gym class in its tendency to trail the pack. The Court often lags behind state legislatures in the march toward social change, as it did with school segregation as well as with laws prohibiting mixed-race marriages. Likewise, by 1986, the year the Supreme Court voted to uphold a Georgia law that criminalized same-sex sodomy, the majority of states had either repealed similar laws or discontinued their enforcement. That case, Bowers v. Hardwick, goes a long way toward explaining the gay rights movement’s profound aversion to federal litigation. Seventeen years would pass before the Supreme Court reversed Bowers.
For their part, Olson and Boies haven’t offered much in the way of reassurance. Asked to address concerns that the suit was premature, Olson offered a short sermon about the costs of delaying justice, keeping details about litigation strategy close to the vest. “We know what we’re doing,” he insisted.
In the same statement, Olson tried preempt accusations that he joined the cause with intentions of undermining it. “I hope the people don’t suspect my motives,” he said.
It is plausible, though unlikely, that by “we know what we’re doing,” Olson means to say his legal team will tread carefully, that they will tiptoe through the appeals process and drop the case before the Supreme Court has to get involved. I say unlikely because all signs point to ambitions of a higher order. Recall that this lawsuit is, in a very literal sense, a Hollywood production. The hired guns, the swanky L.A. interest group, the carefully timed press conferences – it’s a Sean Penn film in the making. Also, why pay upwards of $1,000 per hour for two prominent Supreme Court advocates if you don’t foresee the suit going to Washington?
It is a virtual certainty that the Supreme Court will split 5-4 over marriage equality. As to which side will attract the five-vote majority, analysts are uncertain. The Court’s conservative wing wrote off the idea of expanding equal protection rights to cover sexual preference back in the 1980s. Since then its members have voted accordingly, rejecting even the most modest of the Court’s concessions to the gay community. As for the liberal bloc, scholars presume Judge Sotomayor will replace Justice Souter as a reliable fourth vote supporting marriage equality. The ninth and deciding vote belongs to Justice Kennedy, the Court’s resident swing vote. If Boies and Olson believe their lawsuit has legs, it’s because they think Kennedy is on their side.
Kennedy’s position on same-sex marriage is a subject of enduring speculation in the legal community. To the frustration of conservatives, Justice Kennedy has found more common ground on gay equality with the Court’s left wing than with its right. In three recent discrimination cases, Kennedy twice upheld the constitutional claims of gay plaintiffs, writing on both occasions with full flourish about the law’s commitment to neutrality.
Yet same-sex marriage advocates aren’t convinced he’s an ally. Many look at Kennedy and see a Reagan appointee with a soft side for civil liberties – hardly a servant to the cause. Kennedy has also developed a certain swagger as the pivot vote on a divided court, and some observers are put off by the liberties he takes with case law when he’s called upon to cast a deciding vote. Never content merely to break a tie, Kennedy is infamous for muddying already convoluted precedent with stand-alone concurring opinions.
This skepticism helps explain why Kennedy’s opinions supporting same-sex equality often receive a subdued reception. It’s a natural reaction from a community with such a rocky relationship with the federal judiciary. But underlying AFER’s suit is a wager that the gay rights movement has been hiding from an adversary in the Supreme Court that no longer exists. If the group is right, the payout will be enormous. If it’s wrong, the movement gets set back a decade or two. In either event, Justice Kennedy will have the last word.
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Sam Singer is the Beachwood’s legal correspondent. He welcomes your comments.
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Previously by Sam Singer:
* Is TARP legal? Court to decide on laugh test.
* Taking Government Out Of The Marriage Business. Separating church and state.
* Chicago’s Disorderly Conduct. Dissent allowed even in Daleyland
* Why Google Will Win. Newspapers are on the wrong side of the digital revolution.
* Is Blago A Flight Risk? We asked; a judge said yes.
* Obama’s Torture Test. Politically calculating.
* Replacing Souter. Signs point to Kagan.
* Going to Pot. The states vs. the feds.
* The Sotomayor Show. A guide for viewers.
* Chicago’s Still Valid Gun Ban. Chicago vs. D.C.
Posted on June 15, 2009