Proposition 8: Going Federal
posted by: Steve W. 184 days ago
Ted Olson, George Bush's Solicitor General, and considered by some to be a long time ultra conservative, has announced, along with attorney David Boies, that he will bring a federal challenge to Proposition 8 on behalf of a client. This has got many GLBT groups debating as to whether such a challenge could even be successful and if now is actually the right time for such a pursuit.
In a statement, Mr. Olson had this to say of the challenge:
"It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution... the constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy...I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."
The time and logistics of even bringing a case like this to the U.S. Supreme Court aside, the stakes would be astronomical. With all we know about Ted Olson – he was the man who argued for George W. Bush as President over Al Gore in 2000 (strangely, the latter argued for by Olson's partner in this lawsuit, David Boies) – I confess there is a part of me reticent to believe that this case could be argued effectively by a staunch Conservative.
But then I dismiss that notion because who better for talking to an ostensibly conservative Supreme Court than someone known as a Conservative himself? On the surface, therefore, it could be a marvelous idea. Take it to the federal court and maybe win on the grounds that Proposition 8 violates equal protections. Brilliant.
But there's also a panic in me. A feeling that the federal court isn't the next logical step. Why? Because the U.S. Supreme Court are unlikely to interfere with what the California Supreme Court decided and what the California public voted for. This seems to be the central issue often overlooked. People decry that the Supreme Court Justices upheld Proposition 8 but let us not forget a majority of 52.5% voted for the measure in the first place. As sad as it is, as small as it is, that was the majority rule.
I commend Mr. Olsen for his efforts. That he is willing to fight in the corner of Californian GLBTs and, in so doing, fight for all GLBTs on this issue is certainly a brilliant thing, and a remarkable thing given the ire it might provoke from some of his Conservative counterparts, but the main point of contention in his argument surely must be that unlike interracial marriage, gay marriage is not enshrined in federal law. It can't be until the Defense of Marriages Act (DOMA) is repealed.
The U.S. Supreme Court would have to break a lot of ground to overturn Proposition 8, and they very rarely enjoy doing that. Even when they have ruled in favor of gay rights in the past, they have been explicit that the decision was, in no way, meant to be a recognition of same-sex partnerships.
Also, thinking of Proposition 8 and the battle that led to the California Supreme Court decision, the supporters of Proposition 8 stated that if the Supreme Court did overturn the ballot vote, they would be going against the will of the people. If the US Supreme Court did intervene as a result of this proposed federal lawsuit and overturned Proposition 8, the exact same criticism could be leveled. Why should that matter? Well, it could be used to provoke reaction in a public that were conservative but previously sympathetic, leading them to not vote favorably on gay marriage and gay rights due to what they see as a federal court interfering with a state's democratic process.
Risking this, at this stage, would also be needless. 52.5% of people voted in favor of Proposition 8 in California. That isn't an insurmountable figure by any means. In fact I don't believe for an instant that it's a true reflection of opinion on gay marriage in California at all.
No. From this viewpoint, and respectful of those advocating the federal lawsuit, I think it much more prudent to take Proposition 8 to the ballot in 2012 or even as close as 2010 if the funds could be raised and the campaign mobilized. The will of the people. The power of the majority. These aren't things unattainable in California.
Also, if taken to the U.S. Supreme Court, the impetus behind a ruling that upholds Proposition 8 could be more than just a simple loss for gay rights. It could put the battle in retrograde. Both Iowa and Connecticut looked to the U.S. Supreme Court and their decisions in the past to steer them in their gay marriage debate. A positive, one might think. But come at that from a different angle.
Try to overturn Proposition 8 federally, but loose: now there are grounds to uphold laws discriminating against GLBTs in the work place, in parenting, housing benefits etc. It would enforce the seperate but not equal status of GLBTs in America today. The reach is wide and bitter, a loss for one being a possible loss for all.
Far better to put Proposition 8 on the ballot once again in California and pursue the DOMA repeal federally while there is a (hopefully) sympathetic ear in President Obama. Once DOMA is gone, the house of cards for gay marriage as an institution can begin to stack up with much stronger foundations than before. As it is now, the pursuit of gay rights in America is fighting the tide, all be it quite successfully in some areas.
In short, to the question "Should gay rights advocates pursue overturning Proposition 8 in the federal court?" the answer is yes. But, in my opinion, only as a last resort, because by that time it should be an all or nothing game.
Sign this Care 2 Petition to urge President Obama to overturn DOMA.
Also, if you haven't already, sign this pledge to defeat Proposition 8.
In a statement, Mr. Olson had this to say of the challenge:
"It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution... the constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy...I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."
The time and logistics of even bringing a case like this to the U.S. Supreme Court aside, the stakes would be astronomical. With all we know about Ted Olson – he was the man who argued for George W. Bush as President over Al Gore in 2000 (strangely, the latter argued for by Olson's partner in this lawsuit, David Boies) – I confess there is a part of me reticent to believe that this case could be argued effectively by a staunch Conservative.
But then I dismiss that notion because who better for talking to an ostensibly conservative Supreme Court than someone known as a Conservative himself? On the surface, therefore, it could be a marvelous idea. Take it to the federal court and maybe win on the grounds that Proposition 8 violates equal protections. Brilliant.
But there's also a panic in me. A feeling that the federal court isn't the next logical step. Why? Because the U.S. Supreme Court are unlikely to interfere with what the California Supreme Court decided and what the California public voted for. This seems to be the central issue often overlooked. People decry that the Supreme Court Justices upheld Proposition 8 but let us not forget a majority of 52.5% voted for the measure in the first place. As sad as it is, as small as it is, that was the majority rule.
I commend Mr. Olsen for his efforts. That he is willing to fight in the corner of Californian GLBTs and, in so doing, fight for all GLBTs on this issue is certainly a brilliant thing, and a remarkable thing given the ire it might provoke from some of his Conservative counterparts, but the main point of contention in his argument surely must be that unlike interracial marriage, gay marriage is not enshrined in federal law. It can't be until the Defense of Marriages Act (DOMA) is repealed.
The U.S. Supreme Court would have to break a lot of ground to overturn Proposition 8, and they very rarely enjoy doing that. Even when they have ruled in favor of gay rights in the past, they have been explicit that the decision was, in no way, meant to be a recognition of same-sex partnerships.
Also, thinking of Proposition 8 and the battle that led to the California Supreme Court decision, the supporters of Proposition 8 stated that if the Supreme Court did overturn the ballot vote, they would be going against the will of the people. If the US Supreme Court did intervene as a result of this proposed federal lawsuit and overturned Proposition 8, the exact same criticism could be leveled. Why should that matter? Well, it could be used to provoke reaction in a public that were conservative but previously sympathetic, leading them to not vote favorably on gay marriage and gay rights due to what they see as a federal court interfering with a state's democratic process.
Risking this, at this stage, would also be needless. 52.5% of people voted in favor of Proposition 8 in California. That isn't an insurmountable figure by any means. In fact I don't believe for an instant that it's a true reflection of opinion on gay marriage in California at all.
No. From this viewpoint, and respectful of those advocating the federal lawsuit, I think it much more prudent to take Proposition 8 to the ballot in 2012 or even as close as 2010 if the funds could be raised and the campaign mobilized. The will of the people. The power of the majority. These aren't things unattainable in California.
Also, if taken to the U.S. Supreme Court, the impetus behind a ruling that upholds Proposition 8 could be more than just a simple loss for gay rights. It could put the battle in retrograde. Both Iowa and Connecticut looked to the U.S. Supreme Court and their decisions in the past to steer them in their gay marriage debate. A positive, one might think. But come at that from a different angle.
Try to overturn Proposition 8 federally, but loose: now there are grounds to uphold laws discriminating against GLBTs in the work place, in parenting, housing benefits etc. It would enforce the seperate but not equal status of GLBTs in America today. The reach is wide and bitter, a loss for one being a possible loss for all.
Far better to put Proposition 8 on the ballot once again in California and pursue the DOMA repeal federally while there is a (hopefully) sympathetic ear in President Obama. Once DOMA is gone, the house of cards for gay marriage as an institution can begin to stack up with much stronger foundations than before. As it is now, the pursuit of gay rights in America is fighting the tide, all be it quite successfully in some areas.
In short, to the question "Should gay rights advocates pursue overturning Proposition 8 in the federal court?" the answer is yes. But, in my opinion, only as a last resort, because by that time it should be an all or nothing game.
Sign this Care 2 Petition to urge President Obama to overturn DOMA.
Also, if you haven't already, sign this pledge to defeat Proposition 8.
Read more: civil rights, gay marriage, Supreme Court, proposition 8
comments
The point is that for as long in this country the human rights issues are to depend on so called public votes, ballots... whatever and for as long as that's (mis)interpreted as so called "will of the people"- it isn't gonna be good nor fair.
USA needs a staunch Bill or Charter Of Rights (in which all gay rights are totally included and protected) so that gay rights such as right to marriage does NOT depend on so called "will of the people". No any other human rights depend on "will of the people", therefore gay rights shouldn't depend on "will of the people" either.
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I hold the same reservations about this but because the appeals process will take some time, I thinks these concerns should not stop the progress. If it did ever get to the Supreme Court, it will be a ways down the road.
I especially appreciate your articulation that the court didn't really vote against same-sex marriage directly. They voted on the question of if Prop 8 was a "legal" amendment to the CA constitution. That process in CA requires only a simple majority of votes. It is a horribly flawed system in today's world, even if when it was created it had value.
The federal appeal can go a long way towards bringing the focus back to the real issue which is one of equal rights/equal protection. Additionally, it can help the stage for our own version of Loving vs VA.
I think it is critically helpful (or could be- can lawyers really be trusted to mean the things they say?) to have such a strong conservative voice calling for marriage equality. The more voices and the more diverse the voices are, the better for marriage equality.
The ruling was a set back, but not unexpected and really, not the end by any means. I get a little annoyed by people who seem to suggest that if the court had overruled Prop 8 the fight would have been over. Just not true. So what's next? Need to get it back on the ballot and really work to get it passed this time, even if it is by only a slim margin. And then probably go through the whole CA Supreme Ct thing all over again.
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Good one Chris and quite possibly will come to that if we do not keep our rights for all.
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Ok
Lets break out the sex Police
California Law states NO Fake Orgasms
It’s illegal to have oral sex
It’s illegal to kiss a woman if you have a moustache
It’s illegal for dogs to “get it on” within 500 yards of a church.
It’s illegal for you to be alone with your secretary in the same room
In Bakersfield, Calif., if you're going to have sex with Satan, you've gotta use a condom.
Laws are supposed to protects us, but when the government decides to get in our pants, some crazy stuff goes down!
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Re: the stats in CA - a majority of THOSE VOTING voted for Prop 8. NOT a majority of all eligible voters in CA! Also, our laws deny voting rights to many people who might have voted against Prop 8 - people who are homeless - people who have had convictions for victimless crimes like possession of small amounts of marijuana for personal/medical use. And of course oppressed and demonized sex workers like prostitutes. And people in and out of shelters for victims of 'domestic' [sic!] violence. ALWAYS REMEMBER THAT THE SYSTEM DISENFRANCHES FOR A REASON. It is up to progressive people to CHANGE our voting laws to include the disenfranchised. Prop 8 is a perfect example of why this is true. We cannot let the smug, self-sanctified and arrogant right-wing fascists in this country steamroll the oppressed people whose numbers are increasing every second of every day and night: victims of violence, of our crapitalist economy, and victims of unjust laws. As long as we allow disenfranchisement to be the "law of the land" by default and by decree, we will reap what that injustice is sowing: DISCRIMINATION AND DEATH.
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I do believe that, at its core, marriage equality is a civil rights issue. I'd want to see the best strategy used to ensure its legality. To that end, I'm not sure whether it's best at this time to attack Prop 8 frontally, by taking it to the Supreme Court, or if it's best to knock the legal supports out from under the opposition first, by doing away with DOMA. and any other statute that supports marriage inequality. The problem with the latter strategy is that it could take a very long time to do this, and even though President Obama might refuse to defend DOMA, another president down the line might embrace it. (Is there a constitutional challenge to DOMA in the works anywhere?) I think it's going to have to be challenged legally, in any case, because winning "hearts and minds" is tough going in a state as polarized as California is now. Many people have chosen their sides, and persuasive ads in favor of marriage equality may not be enough to change the state constitution. The conservatives have a lot of money and a lot of firepower, and they level their irrational and false arguments at people's visceral fears. Before the federal civil rights laws of the '50's and 60's, no state was going to change its statutes to grant equal rights to minorities: it was the federal government that had to decide the matter and thereby require the states to eliminate discriminatory laws. The problem here is that the general public doesn't yet understand that this is a matter of civil rights.
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I agree James and I am a resident of California. My hubby and I voted for gay rights. Anyone that I know who lives here also voted for their rights and some are quite religious.
I don't care what people think this is killing our Constitution and the Constitution is more important than a marriage certificate. If Bush took away most of it, the people will take away the rest. If we allow the government to interfere in our private lives we are asking for what we get as a result. Bedroom police anyone?
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I feel sorry for the people of Ca. They know not what they do. Constitutional ignorance is responsible for the vote on Prop 8. One day the people of this country will realize that the key to freedom is tolerance.
"In Germany, they came first for the Communists,
And I didn’t speak up because I wasn’t a Communist;
And then they came for the trade unionists,
And I didn’t speak up because I wasn’t a trade unionist;
And then they came for the Jews,
And I didn’t speak up because I wasn’t a Jew;
And then . . . they came for me . . .
And by that time there was no one left to speak up."
~Pastor Martin Niemoller
I hope this will not be the fate of the American people. Contrary to popular belief, the majority only rules in elections. In all other cases the rights of the individual out weigh the rights of the whole.
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On one hand, I am happy to see Prop 8 challenged. On the other hand, I am fearful that Supremes like Scalia (read his homophobic dissent in Lawrence vs Texas) will enshrine inequality into federal law.
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With all of this coverage I'd expect that petitions for equal rights would have a signature boom. So far I have yet to see it and am slightly disappointed. Please take into consideration the following petition:
http://www.thepetitionsite.com/1/give-back-honor-to-those-with-an-quotunder-honorable-conditionsquot-discharge
And keep in mind that with all the arguing back and forth on the comments section of these stories all the comments won't amount to much if no one is actually doing something like signing petitions and protesting no matter what side of the fence your on.
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Photo used under the Creative Commons Attribution License with thanks to T.W.Buckner.
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