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Wednesday, May 27, 2009

And Now for a More Plausible Challenge to Prop 8 . . .

I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on.  I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve.  But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite serious constitutional revision of direct democracy's role in California's governance and state constitution.  Many people don't like direct democracy and would love to undermine it in any way possible.  But I didn't think this was the right way to revise California's constitution.  I'm a gay rights advocate.  Not this way, though.  And I had assumed we'd win at the polls soon enough. 

But I confess I do take great pleasure in Ted Olson taking on the caseThe Bush lawyer in Bush v. Gore is now filing a federal lawsuit to have Prop 8 overturned on federal grounds: that denying same-sex couples the right to marry violates the federal Constitution.  And he's looking forward to arguing it in front of his buddies at the Supreme Court.  Now that argument just might be a winner -- and there is certainly a firm legal footing to support that argument even if it loses the day.  One can still worry about backlash, about judicial role, and about whether gay rights advocates should go this route instead of a more piecemeal legislative and hearts-and-minds campaign.  But the nerdy lawyer in me has no qualms about this lawsuit the way I had serious reservations about the legal house of cards upon which the state argument was made.  And I'm delighted by the courage Ted Olson is showing in making the right argument against Prop 8, even if it alienates him from large segments of the Right and even if the Left wasn't quite ready to take the gamble.  Ted Olson is now making the argument gays strategically avoided, the Republicans can't stomach, and even our audacious President is too scared to make.  Quite an interesting turn of events.

Posted by Ethan Leib on May 27, 2009 at 05:44 PM | Permalink


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I'm not sure that the direct approach makes the most sense with the current court. Will Justice Kennedy buy this argument? I think not.

A better posture would be to have a newly married gay couple from the East which has moved to California after the most recent Prop 8 decision challenge the validity of the Defense of Marriage Act as beyond the scope of Congressional authority under the Full Faith and Credit Clause and Equal Protection Clause, which asserts that the right to marry is a fundamental privacy right, which should be subject to strict scrutiny.

Thus, state legislatures wouldn't have to pass any particular marriage laws. Instead, state courts would simply have to honor the supremacy of the Full Faith and Credit Clause when evaluating the validity of out of state documents. This removes the shibolith of state autonomy and popular democratic sovereignty from the equation, something that Olsen suit makes a frontal attack upon.

Posted by: ohwilleke | May 29, 2009 12:47:38 AM

In response to Jay, California's preclusion doctrine is based on primary rights, not the more well known transaction/common nucleus test. The federal district court should give full faith and credit to California's judgment based on state law. Hence, while there are plenty of other hurdles for the Olson/Boies suit, there is probably no claim preclusion problem here.

Posted by: David Levine | May 28, 2009 6:30:56 PM

Rooker-Feldman aside, isn't claim preclusion a potential bar? California courts were competent to adjudicate the federal claims being made now, but the plaintiffs didn't bother to bring them. The cases stem from the same nucleus of operative facts, which is a common test used in this area of law, although I don't know what the Ninth Circuit jurisprudence is. The best defense, maybe, would be that the plaintiffs in the two cases aren't in privity. But if I were the state, I would certainly raise it.

Posted by: Jay | May 28, 2009 12:11:46 PM

Being a civil procedure geek myself, I have only two words in response to the "new" proceeding:


I don't think that's a winning argument, but it's a plausible-enough preemptive argument that a district-court judge who doesn't want to rule on the substance of the matter can rely on the clogged appellate system to take the matter off his/her desk for, oh, five years or so. And, since it's a quasi-subject-matter-jurisdiction issue, he/she can raise it sua sponte. (I also don't like the doctrine itself, but I'm afraid we're stuck with it.) The bonus is that the scope of Rooker-Feldman concerning challenges by absent class members is even more unclear than the rest of the doctrine...

Cynical? Me?

Posted by: C.E. Petit | May 28, 2009 11:43:01 AM

I wouldn't be so sure this is the right valence. The courts that have ruled in favor of same-sex marriage have generally been majority Republican, and some might have noticed that the backlash against non-legislative elimination of marriage discrimination seems generally to help Republicans. (This is not the same as the argument that Gavin Newsom cost Kerry the 2004 election; Nate Silver says gay marriage didn't drive outcome-determinative turnout in 2004.)

If Ted Olson, Bush's first Solicitor General and backer of the most scurrilous of Clinton investigatory efforts (over the outlandish Arkansas murder-plot business), sees a margin in pushing a premature federal argument to eliminate marriage discrimination, I wouldn't assume it's because he's seen the light. He might be heightening the contradictions. That is, he might be hoping to lose big. (Though this would be a breach of professional ethics and a Very Bad Thing.)

That said, David Boies also signed the complaint. So maybe they're just both misguided rather than in on an evil Olson plot to lay down a Bowers v. Hardwick-style marker to make sure marriage equality isn't a federal constitutional issue for a generation.

Posted by: Scott | May 27, 2009 10:59:35 PM

While Ted Olsen is at it, he ought to sue to give singles, cohabitors and other unmarried cohabitors like Grandma-Grandkid, Brother-Brother, Brother-Sister the same rights, since denying them the 1000+ benefits of marriage

· Violates the Due Process Clause by impinging on fundamental liberties
· Violates the Equal Protection Clause of the Fourteenth Amendment
· Singles out unmarrieds for a disfavored legal status, thereby creating a category of “second-class citizens.”
· Discriminates on the basis of marital status.

Posted by: jimbino | May 27, 2009 10:45:50 PM

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