The suit challeneges Prop 8 (and thus DOMA and 30+ state constitutions and at least a dozen state laws) on Equal Protection grounds, something that gay rights groups have not done because if they lose it'll be like Plessy v. Ferguson and stay on the books for years. This has happened before to the gay community, with the criminalisation of homosexuality ruled permissible in 1986 which wouldn't be removed until 2000 (13 states at the time still had sodomy laws at the time, too)Parties in Prop. 8 suit reject more plaintiffs
Matthew B. Stannard, Chronicle Staff Writer
Sunday, August 9, 2009
They agree on little else, but the two sides of the federal lawsuit challenging California's ban on same-sex marriage have found one point in common: that other gay-rights groups and the city of San Francisco should be kept on the sidelines as the case moves ahead.
Lawyers for the same-sex couples challenging Proposition 8 in U.S. District Court in San Francisco and for the Alliance Defense Fund, representing sponsors of the law, filed briefs Friday that differed on whether a trial is required to settle the dispute over the November ballot measure, which invalidated the state Supreme Court's May 2008 ruling that struck down a law defining marriage as the union of a man and a woman.
But the two sides agreed that the court should deny motions by the city and the advocacy groups seeking to become parties in the case.
The two couples represented by attorneys Theodore Olson and David Boies note that the gay rights organizations seeking to intervene in the case share their clients' basic positions. But adding parties would just delay matters, they argue - an opinion shared by the Alliance Defense Fund.
But underlying the plaintiffs' objection to the intervention is a more fundamental debate that has riven the gay rights community: the question of whether this federal lawsuit should have been brought at all.
That debate began shortly after the suit was filed in May, within days of the California Supreme Court upholding Prop. 8. Several gay rights groups immediately slammed the suit as disastrously timed because they said federal courts and the Supreme Court were unlikely to uphold same-sex marriage at this time.
Chad Griffin, president of the American Foundation for Equal Rights, which launched the suit, sent a letter in July accusing the advocacy groups of undermining the case in public and private comments and asking them not to intervene.
Nevertheless, the groups filed a motion to intervene that month, arguing that they represented a more diverse community of same-sex couples than did the two couples represented in the suit. San Francisco also moved to intervene.
Olson and Boies suggested Friday that if the court allowed any intervention, it should grant San Francisco's request. But the other advocacy groups, the lawyers argued, should be limited at most to roles as "friends of the court," - allowed to offer opinions, but shut out from decisions on how the case should be pursued.
"Having declined to bring their own federal challenge to Prop. 8," they wrote, the advocacy groups "should not be allowed to usurp Plaintiffs' lawsuit."
Attorneys for the city and the advocacy groups have note yet filed their responses to the opposition to intervention.
From my amateur legal knowledge:
-They're in the 9th Circuit, but California's supreme court can't make a ruling on this. It's a constitutional issue, and the California state constitution is amended to make equal protection have an asterisk next to it anyhow according to their previous rulings on Prop 8.
-It'll with 100% known probability get a quick (if reluctant) loss in California SC, and be appealed to the US Supreme Court, where the actual case will unfold, just as the lawyers plan.
-Scalia, Thomas, Roberts, and Alito will be against: They're either similar ideologically or the exact same people who dissented in the case in 2000 that struck down the ability of a state to criminalise homosexual sex.
-Ginsburg, Stevens, Breyer, and hopefully Sotomayor will be for.
-Justice Kennedy supported striking down Sodomy, but supposedly stated on the record in 2000 that he did not believe that this ruling would apply to gay marriage. A political reassurance or a legal one? On the other hand, he supports expansion of antidiscrimiantion laws to homosexuals. He's the Swing Judge and the future of gay rights depends on what he thinks now rather than what he's said.
From what I understand about politics:
-If the court goes for this, every single state instantly must accept all gay marriages from all states and perform them themselves, and DOMA is either automatically defeated or ripe for another lawsuit that would breeze through the SC. Expect conservative outrage and an attempt to amend the constitution or mass-impeach the supreme court or both. The almost-never-used Constitutional Convention approach, with how overstacked with states the midwest is, could be called into play. If this goes through, it changes everything- the blue dogs will be massacred and the democrats will lose the house and senate in 2010, maybe even 2012 if they have to block a Marriage Protection Amendment.
-If it fails, all state legal challenges to gay marriage bans like Iowa will no longer be possible, and it will take a shfiting in the court (at least a decade or two) to potentially repeal this. Further, Gay Marriage in Iowa will almost assuredly be rechallenged legally and defeated.
Also, I can't see a way for an Equal Protection Case to not decide once and for all the issue of protected class for LGBT. This lawsuit could potentially mandate federal hate crime laws or wipe out the ability to enforce any antidiscrimiantion or hate crime laws, which the majority of states have. That's potentially even worse.
Now, needless to say, the gay community has been hyperventilating from what I understand. Half of them are shouting "Freedom for once and for all!" and believe that the cautious, state by state strategy has done nothing. These people tend to be younger and more concerned with marriage than with, say, the less glamourous issue of housing nondiscrimination (something the gay rights lobby groups have managed to pass in a plethora of states) or hate crimes (suprisingly, the South has LGB-inclusive (but not T) hate crime laws at about the same rate as the North).
Meanwhile, the older, gay organisation patronising members of the community seem worried. If this lawsuit fails, it'll be catastrophic. Some of them seem paranoid that Olsen (who won Bush the presidency in 2000) is going to sabotage the case out of some secret mission to destroy gay rights. (Which seems unlikely). Others point out that the ruling is probably going to be 5-4 against with Kennedy ruling against the plantiffs, and that the court isn't favorable which is why this wasn't attempted.
The Gay Rights organisations are afraid of this and have purposefully not allowed any suits their sponsorship (which was necessary for legal and financial help) because a loss will cripple the movement, preferring small, local actions. When some movie stars from Hollywood are bankrolling a case by an independent couple, they're afraid that it'll fail and condemned it as a stupid action, but now that they see it's inevitable they want to help. They've been denied because the two lawyers are afraid that they would sabotage the case rather than see it get to the Supreme Court, and that their additional arguments would dilute the core of the constitutional objections they raise.
There's a few other things that could shake this:
The Court could deny Certiorati. You need 4 justices to agree to hear a case before it is heard, as the supreme court has limited time and doesn't care about most things brought to it. Certiorati is probably less likely to be denied given that the suit presents an actual constitutional challenge and because I could see even Scalia or the like voting to hear the case (in order to rule against it, mind, but even Scalia could admit it presents a pressing constitutional question). On the other hand, SCOTUS didn't grant a DADT Equal Protection case Certiorati just few months ago, so it's possible it could be denied hearing for a number of reasons.
I'm personally iffy on this. I'd rather have waited half a decade and hoped that the court makeup shifts. You can talk about "Civil Rights Doesn't Wait", but suicidially charging into a conservative court will just delay it even longer than doing nothing. On the other hand, it would be amazing if won, and it's close. Legal Experts have no clue what will happen, so it's all just predictions on how Justice Kennedy's mind works.
In my opinion, there's only one thing to do in such a case, albeit one you should have already been doing: Depending upon religious status, either hope or pray that Justice Scalia dies soon.
Keep your fingers crossed.
