Rethinking gay marriage lawsuit

David Boies, who represented Al Gore before the Supreme Court in Bush v. Gore, is teaming up with Ted Olson, his opponent who represented George W. Bush.

This time, they're hoping to go to the Supreme Court together in a suit to overturn California's Proposition 8. A few weeks ago, when this was first announced, I thought the timing was premature, that it would likely fail and then set back the cause by some years.

Now, however, Boies has written an op-ed for the Wall Street Journal that's making me reconsider. It suddenly seems more likely that it could be overturned by their arguments. I'm assuming that Olson concurs with his reasoning, since they're a team in this case.

As we heard in Sonia Sotomayor's testimony last week, it's all about precedent. So here's Boies' appeal to precedent:

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

Then he asserts that the arguments (1) that gay marriage threatens the institution of marriage and (2) that depriving gays of basic rights will cause them to change their orientation are simply not upheld by discussion or by scientific evidence. he further points to the experience of several countries and to Massachusetts, where gay marriage has been in effect for a while, with no apparent damage to anyone or to the institution. And he concludes with these important points:

But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution. The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. . . .

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

I didn't need convincing of the rightness of these arguments. Now I'm almost convinced of the rightness of the timing. If all nine justices vote according to the law -- as the Republican senators kept insisting that Judge Sotomayor must do -- then I believe it will be overturned. But I'm not sure we can count on that.

The only other strategy quesion is: do we really want a 5-4 decision? Wouldn't that just increase the rancor? Would it be better to wait until there's a likelihood of at least a 6-3 decision? If we could only know the outcome before having to commit to the trial . . .

Ralph