Tuesday, August 18, 2009

Prop 8 Goes to Washington

NY Times is reporting that Ted Olson, apparently a Boalt alum, is pursuing a federal challenge to Proposition 8 before the Supreme Court. He has won 44 of his 55 cases before the Court, including Bush v. Gore. That's right, he's a conservative.

Olson's politics and pedigree alone make this newsworthy, but the arguments he's pursuing, while not exactly earth-shattering, also provide a unique Federal spin on the issue:
In Mr. Olson’s analysis, the situation in California presents a favorable set of facts for an equal protection argument. Proposition 8 created three classes: straight couples who could marry, gay men and lesbians who had married in the brief period before the ban, and gay couples who wanted to marry but now could not.

. . .

Given that [Lawrence v. Texas] established gay sex as a protected right, Mr. Olson argues, the state must demonstrate that it has a rational basis for discriminating against a class of citizens simply for engaging in that behavior.

He dismisses [the] contention that the California ban is justified by that state’s interest in encouraging relationships that promote procreation and the raising of children by biological parents. If sexual orientation is not a choice — and Mr. Olson argues that it is not — then the ban is not going to encourage his clients to enter into heterosexual, child-producing marriages, he insists. Moreover, he says, California has waived the right to make that argument by recognizing domestic partnerships that bestow most benefits of marriage.
Lawrence makes homosexuality itself a constitutionally protected right, and marriage inequality discriminates against people exercising that right; therefore, gay marriage bans are unconstitutional.

Seems straightforward enough to me, but it leaves little room for compromise. A ruling in Olson's favor would not only overturn Prop 8, but also effectively legalize gay marriage everywhere in the country. Obviously, I'm in favor. The question is, are the Court and the Country ready?

Perhaps Olson's name on the docket will make them think twice before answering.



Anonymous Anonymous said...

This is not new. While today's Times article is a good in-depth look at Olson taking up this case, it was initially reported months and months ago.

8/19/2009 7:12 AM  
Blogger Toney said...

How dare you present us with anything other than cutting edge material! Preferably, news so new it hasn't even happened yet.

8/19/2009 8:43 AM  
Blogger Dan said...

You'll get only the stalest of news from me. "Day-old" news at a discount. That's my specialty.

I knew the suit began months ago, but we hadn't weighed in on it yet. And I did not realize Olson was a Boalt alum until looking over the Times piece, which obviously seemed relevant.

Anyway, here's hoping he succeeds!

8/19/2009 9:39 AM  
Anonymous Anonymous said...

Dan--Good post, but a couple of things. I don't think it is correct that "Lawrence makes homosexuality itself a constitutionally protected right." Lawrence found that "matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by Fourteenth Amendment." In other words, the case was not about homsexuality itself but rather private sexual conduct (of which homosexual sodomy may be a part).

This is an important distinction, because it could be argued that a Prop 8 case is not about the type of private conduct Lawrence protected, and therefore Lawrence should not be considered. This could be a problem for Olson's argument that the "state must demonstrate that it has a rational basis for discriminating against a class of citizens simply for engaging in that behavior." It would seem the state could argue that marriage laws are a public function and do not restrict the right to homosexual sex and other private conduct (which is all that Lawrence protects) and so they have no need to make the type of demonstration Olson describes. If that's the case, then striking down Prop 8 in a federal court for the reasons Olson describes would require quite a bit of new case law on the part of a court, and not simply an application of Lawrence.

And sorry to nitpick, but Olson isn't "pursuing a federal challenge to Proposition 8 before the Supreme Court." He is going before a district court in SF, with hopes of reaching the Supreme Court, but who knows if or when that will ever happen. I also think that using federal, instead of state, arguments is pretty major, and a big reason why many pro-marriage groups aren't happy with Olson for doing this. Personally, I think the strategy of chipping away state-by-state is working and they ought to stick to the plan.

8/19/2009 11:06 AM  
Anonymous Anonymous said...

What Lawrence protects is immaterial to an equal protection rational basis analysis. Under equal protection, all discriminatory classifications must meet rational basis. Lawrence, which was decided on substantive due process grounds, would only be helpful if it enunciated some form of elevated scrutiny for conduct within the liberty interest it purported to protect. However, it is a matter of some debate as to whether Lawrence created elevated scrutiny for homosexual conduct (or anything else).

But, again, you don't need Lawrence for a rational basis analysis. All discrimination must be rational.

8/19/2009 11:40 AM  
Anonymous Anonymous said...


This is 11:06. We're in agreement, aren't we? Olson doesn't need Lawrence as a sword for his EP claim, but neither may he use it as a shield against the state's arguments. I think we agree that Lawrence shouldn't factor heavily, but I worry that people will get caught up in what Lawrence supposedly protects, only to later get bench-slapped by conservative judges who actually read the case.

I agree with you that Lawrence may not have created elevated scrutiny for homosexual conduct (I'd go further and say it definitely did not). That was one of Scalia's main points in his dissent--that Kennedy didn't use strict scrutiny (or any type of accepted test) in finding protection for private sexual conduct.

One twist to this--a court is being asked to not only overturn state law, but override state constitutional law as well. That makes things more complicated, and so I imagine Romer v. Evans would come into play. But now we are getting past the point of my expertise, so I'll stop talking.

8/19/2009 11:52 AM  
Blogger Dan said...

11:06, thanks for the helpful comments. I understand that Olson is starting at the district level, but I think his aim is pretty clear, so saying he is "pursuing" a challenge before the supreme court isn't exactly wrong. Trying to strike a balance between readability and technical details...

As for your take on Lawrence, it seems like a good argument, and one with which Olson will undoubtedly have to contend.

I'm excited to see how this turns out. Anyone have any insight on how long it usually takes a case to reach the S.C. after the district decision?

8/19/2009 11:59 AM  
Anonymous Anonymous said...

11:40 here-

Yeah, I don't see any disagreement. I was just responding to the main post. Olson's argument is mostly an EP argument, for which Lawrence is mostly unhelpful. The complaint also specifies that prop 8 is a violation of fundamental liberties, but it seems mostly to rely on the right to marry under Loving rather than the right to homosexual conduct under Lawrence.

Complaint available here:


As far as your last paragraph: overriding state constitutional law does not "complicate things" if it violates the federal constitution. Romer is similar to the present situation in that it dealt with a state constitution that arguably violated EP RB, but there is no complication presented by that. Under the supremacy clause, state constitutions must comport with the federal constitution. End of story.

8/19/2009 12:14 PM  
Blogger Kathleen said...

I think Romer is the big case on point, especially in light of the CA supreme court interpretation of Prop 8, which is basically that it doesn't ban anything except for the use of the term "marriage" for future same-sex unions. Romer's rational basis test included a malice component, and the way the CA system is set up, there is absolutely no reason to deny same-sex couples use of the term "marriage" except for malice.

8/19/2009 9:52 PM  

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