Thursday, August 20, 2009

Four Out of Four Legal Experts Question the Timing of the Federal Prop 8 Case

Posted on the New York Times blog, Room for Debate, a question was posed to four legal experts in regards to the Ted Olson and David Boies federal case against Prop 8, "Is this the right time to go to a conservative Supreme Court with such a controversial issue — one that even President Obama has shied away from?"

All four in fact question the logic behind the timing of the case, some more pessimistic than others. Here's some excerpts.

Eugene Volokh, U.C.L.A. Law School: "Some justices — probably at least four and maybe five — probably think the opposite-sex-only marriage rules are clearly constitutional, because nothing in the constitutional text or our nation’s traditions prohibits such rules. And even some of the justices who might be open to a different view are unlikely to want to invalidate the laws of more than 40 states."

Kenji Yoshino, N.Y.U. School of Law: "If this case is decided on the merits, I hope the court will follow Loving [vs. Virginia]. But the court cannot be insensible to the widely expressed sentiment that the timing here may not be right. If the court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim [vs. Naim]."

Amy Wax, University of Pennsylvania Law School: "The Supreme Court generally refrains from deciding federal constitutional questions until federal courts of appeals and/or the highest courts of the states have thoroughly reviewed the constitutional issue and have come to differing conclusions. Departure from this rule is exceptional. The legality of California’s Proposition 8 does not justify an exception, as the California’s highest court upheld the state’s ban and no other court has ruled on the issue.
"The lack of a judicial track record on this complex issue is good enough reason to refrain from considering the validity of California’s Prop. 8."

Evan Wolfson, Freedom to Marry: "The best way to maximize the chances for a just ruling by the court is not just by hiring good lawyers, writing smart briefs, or, even, being right. What’s needed is creating the climate that enables justices to do the right thing.

"That means winning the freedom to marry in more states and winning over more hearts and minds. If the Supreme Court sees that the lived experience of gay couples marrying means families helped and no one hurt, that the rationales offered up to defend discrimination are false, and that the momentum in America is toward inclusion, then the timing may indeed prove right for the justices to do right. The opportunity to use the time between now and the day it’s turned over to the justices is very much in our control. Since that day may come soon, let’s start talking now to the people we need to persuade, and make the timing right."

Yesterday was full of exciting news, with Judge Walker, who is presiding over the Prop 8 case, ruled that for the first time ever, a public trial will be held on a marriage case, establishing a broad record for the appellate courts to use to make their decisions. (This in itself, I would think, would make part of Amy's argument above moot since she claims a record needs to be created first before going to the Supreme Court.) I felt hope for the first time, I must confess, in quite some time.

After reading these opinions, my enthusiasm on this case dimmed. Conservative judges, public opinion, state's rights, bad timing, and many other factors began to weigh down my otherwise buoyant hope for this case.

But then I stopped to consider a little more what Evan Wolfson of Freedom to Marry said. Whether or not we agree that this is the right time for the case, it's happening. So now it's up to us to make it the right time.


By winning marriage equality state by state (we have a chance to win in Maine this November!) and changing as many hearts and minds as possible, so that if and when the case reaches the highest court in the nation, it won't be a matter of right timing, it'll just be a matter of what's right. And that's equality.

So let's get to work.


  1. It's always troublesome to read comments from people working for organizations whose purpose is to defend one's civil liberties expressing an unwillingness or lack of confidence to do so.

  2. I agree with NG. In addition, one must remember how slowly the federal courts move. It will be several years before this case reaches the US Supreme Court, if in fact it is accepted for review by the Court. By that time, several things could have happened, including the retirement of Scalia and Thomas, and their replacement by fairer judges. Other states may also have adopted marriage equality, and public opinion may have moved in our favor.

  3. My point is that these are supposed to be lawyers, not gardeners.

    Public opinion doesn't matter squat. Women's right to vote, integration of the military and interracial marriages were also part of the public opinion, too.

  4. Well, if public opinion didn't matter, then the CA Supreme Court, which ruled same-sex marriages were legal under the state constitution before Prop 8, wouldn't have upheld Prop 8 stating that it was the will of people.

    Though I wish judges weren't swayed by public opinion, they are all the time.

    Just like Yoshino said, the U.S. Supreme Court had a chance to rule on interracial marriage in the Naim case years before Loving, but passed, waiting over a decade until most states repealed their interracial marriage bans before stating it was unconstitutional.

    I agree that those who work for civil rights groups should always take all available chances to win civil rights, but the argument about timing and whether or not the Supreme Court is swayed by public opinion is another subject.