Gay Marriage Advocates Hope for Sweeping Supreme Court Ruling, Right? Wrong!
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Hours after winning a landmark case in a California federal appeals court that struck down the state’s ban on gay marriage, lawyer Theodore B. Olson, who had filed a lawsuit against the ban known as Proposition 8, talked about the odds of the Supreme Court taking up the case.
“This issue will go to the Supreme Court, I think it will go to the Supreme Court in this case, ” he told MSNBC’s Rachel Maddow.
But because the decision by the U.S. Court of Appeals for the 9th Circuit was so specific to California’s unique history with same-sex marriage, some legal analysts believe the justices might pass on the case. Or if the court took it up, it would rule narrowly on Proposition 8 –saving the broader question of whether gays and lesbians have a right to marry for another day.
And that would be just fine for some advocates of gay marriage.
“If by some chance the Supreme Court decided today that same-sex couples had a right to marry, I could see an enormous outcry and a push for a federal constitutional amendment that would ban it. Even if it lost, that would be a nightmare.” E. J. Graff writes in The American Prospect.
Before the challenge to Prop 8 was brought to federal court by the American Foundation for Equal Rights and its lead lawyers, Olson and David Boies, other longtime same-sex marriage litigators focused more on challenging laws that prohibit gay marriage at the state level.
“When Olson and Boies brought this, there was a fear by some members of the gay rights community that you could get an adverse ruling in federal court that would slow political momentum and shut legal doors, ” says Jane Schacter, a professor at Stanford Law School.
The preferred strategy was to go state by state, picking the states very carefully and working to legalize gay marriage at the state level.
“The Supreme Court rarely gets out that far in front of public opinion, and the court is wary of rulings that are likely to provoke a lot of backlash and opposition,” says Schacter. “The strategy by some advocates is to get more and more states to legalize gay marriage, and then go to the Supreme Court.”
While advocates were happy with the federal appeals court ruling, they are not all pressing for a sweeping ruling from the Supreme Court on the issue.
Currently, only six states and the District of Columbia allow same-sex marriages, while other states are moving in that direction.
“The outlook is very positive. The citizens of Maine may get an opportunity to return to the ballot on marriage. The legislature in Washington appears poised to enact marriage equality. The legislature in New Jersey is now considering a marriage equality bill. A marriage equality bill has just been introduced in Illinois where the legislature recently enacted civil unions, ” says Tobias Barrington Wolff, a professor at the University of Pennsylvania Law School who also advised the Obama campaign on lesbian, gay, bisexual and transgender issues during the 2008 campaign.
It’s a carefully crafted Supreme Court strategy by advocates hoping to build momentum on the issue.
“Every successful civil rights movement has involved careful choices over time about what cases are likely to move the law in a positive direction, and which cases are likely to produce good outcomes. That was true of the civil rights movement for African-Americans, it was true for the women’s rights movement and it has been true of the LGBT movement, ” says Wolff.
He says there are tactical decisions made because the Supreme Court does not like to speak on an issue prematurely.
“It is helpful to the justices to benefit from the work of other judges in other courts exploring and analyzing an issue over time before they weigh in with a ruling that can define or change the law for everybody.”
The challenge to Prop 8 is not the only high-profile gay rights case playing out in federal court. Challenges to the Defense of Marriage Act, or DOMA, which does not recognize gay marriage, have also been brought to the lower courts. Those cases do not present the question of whether gay couples have the right to marry, because the plaintiffs are married in states that allow gay marriage. Instead, the cases challenge DOMA, which denies federal recognition of same-sex marriage.
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is being gay a civil right movement? i understand the constitutional argument and have to say i agree.you ought to be able to marry a goat if you want or 10 spouses at once if you are dumb enough as long as you dont hurt other people.
better solution would be to end any benefits for married people as it is discriminatory towards single people. that act alone would put an end to the marriage issue.why should single people who use less of our sysytem pay more?
Posted by: catman | February 9, 2012, 12:29 pm 12:29 pm
With this decisions it shows that no matter what the PEOPLE vote for, if it does not fit into the liberals agenda the courts will throw it out.
Posted by: Lizzie | February 9, 2012, 12:36 pm 12:36 pm
Catman – argument equating gay marriage to marrying a pet goat is growing old and is quite foolish. Goats can not consent to marriage – the last I checked they lacked the necessary brain capacity and verbal skills to enter into marriage agreement or sign the necessary marriage license. Marriage is between consenting adults only. There is no comparison between two consenting adults deciding to marry one another and a person deciding to marry his pet, as essentially, the goat would have no say in the matter. As for polygomous marriages, the growing acceptance of gay marriage does make it increasingly difficult to argue against consenting adults entering into a polygamous relationship – so yes, that will probably be legalized soon as well as gay marriage – and maybe that’s the way it should be. On both counts it is a civil rights issue, as both are clearly defined segments of the population who are being denied their right to marry the consenting adult of their choice.
Posted by: Silly Me | February 9, 2012, 1:34 pm 1:34 pm
Lizzie – You are only mad because the court overturned a law passed by popular vote banning gay marriage? So in the states where people approved gay marriage, it is okay? As much as you may not like it, the judical system is one of the checks and balances in the country. there are plent of opinions (especially by US Supreme Court) I don’t like. There are some rights that are not left to majority rules. That is why we have things such the Bill of Rights. For instance if people in a state decided that inter-racial marriage is illegal, then the courts wouuld intervene and repeal that law. It is not always up to the people.
Posted by: Jim | February 9, 2012, 2:02 pm 2:02 pm
I want someone to give me a reason why gays shouldn’t marry that has nothing to do with religion or the idea that gay people make them feel “icky.” Anyone? Non-religious, non-emotional reason why.
Posted by: Working_Class | February 9, 2012, 2:09 pm 2:09 pm
Who are these advocates who don’t want the Supreme Court to rule on gay marriage now or in the near future? Who is E. Graff? Though I do know Evan Wolfson. I have great respect for him. But, frankly I am an advocate too, and I respectfully disagree with Evan. Only a handful of people want to slow down the dynamics of taking gay marriage to the courts. The others can’t speak for “all” gay rights advocates.
Initially they only wanted it at the ballot box and not at all in the courts. They did not want us to even go to court to challenge Prop 8 because they thought it might fail. They still think it might fail. That is why they are keen to limiting this ruling to California in hopes to keep it out of the Supreme Court and let it rest with the decision made by the 9th Circuit Court of Appeals.
They also did not want DADT in the courts. But, look. It took an initial ruling in favor of repealing DADT and the threat of DADT going to the Supreme Court before the Senate would get on board to repeal it. That would not have happened without the courage to take DADT to court against the advise of people like Wolfson. It is gay rights advocates like that who have a financial vested interest in working slowly, state by state, at the ballot box. Those jobs and their livelihoods go away if the Supreme Court were to make a massive ruling tomorrow that affected all states.
I see how people say the 9th Circuit Court ruling is specifically narrow enough to only affect California. In some ways it is true to the unique nature of how the legislature first gave Californians gay marriage and then it was taken away from them by the Prop 8 vote of the people. In that regard the facts are unique to California. HOWEVER, the discrimination is not unique.
The facts that make gays separate and unequal are widespread into all the 57 states and territories. That discrimination cannot be confined just to California. Just saying that gays in California have equal rights to heterosexuals in California by allowing them to use the word “marriage” does not give them equal status to heterosexual marriage. They are unequal if they are still not allowed the more than 1000 benefits that the word marriage gives to heterosexuals in California and all other states.
For any kind of just and fair ruling to be made it has got to include the benefits and “unequal” side of the ruling. Gays are not unequal because of a word but because of the other laws, codes and statutes that provide for all those federal benefits. This includes things like fairness in IRS taxes, Social Security spousal benefits, etc.
Those are the areas where gays are unequal. Limiting a Supreme Court ruling on those issues by allowing marriage by word only in California does not satisfy the requirement of the Court or of the Constitution’s 14th Amendment. The only way to fairly mete out a ruling for gay marriage that addresses the fairness and equality issue it to address the more than 1000 federal laws, codes and statutes that helps make them unequal. To do that. a ruling has to be made that affects ALL 50 states.
A huge amount of the testimony during the Walker hearings was focused solely on this. A huge part of his findings were focused solely on this. How can a ruling by the Supreme Court NOT rule on this?
Posted by: Henry Juhala | February 9, 2012, 7:53 pm 7:53 pm
All I have to say is flat out,I don’t agree with same-sex marriage,I’m not going to mince words and no I don’t hate them people,but that doesn’t by any means mean that I approve of the lifestyle,anybody can say what they want to,that I’m hateful or mean,but I know that I’m none of that,but just as everybody is allowed their own opinion,so am I and I will stick to it,because in my heart and mind,I know what is right and wrong,we are all human and we do make mistakes,so as far as being judgmental,I’m not doing that,but I don’t condone a lifestyle either that is clearly not right and unacceptable,they talk about rights,where is our rights when it comes to the way we feel about an issue? We have to shut up,well that doesn’t go with me,because I won’t.If we care anything about children in this country,we’ll speak up and when children are being taught that this certain lifestyle is normal,what state will this country be in,in future generations or the children now if we just sit idol and let it take place,than we’ll be no different than the ones who are trying to pass these stupid laws,because we will be sitting by and doing nothing and letting it happen.
Posted by: Gayla | February 24, 2012, 10:26 pm 10:26 pm