This case has fascinated me from day one. Not only because of the sweepingness of it, and not just because of the tactic it takes -- I have long assumed that the major nationwide case in support of marriage equality would come by way of a challenge to the Defense of Marriage Act, which I've always thought pretty clearly violated the Full Faith and Credit clause, which says that every state must honor "the public acts, records, and judicial proceedings of every other state" -- like a marriage license. And, in fact, such a lawsuit is in the works right now, filed in Massachusetts last summer, and I still believe that this is the most likely lawsuit to succeed.
But today we're talking about "Perry v. Schwarzenegger", which is somewhat misnamed, because in an unusual turn of events, the state is not defending its own law -- Attorney General Jerry Brown has stated that he believes the law to be unconstitutional, and so will not stand for it in court. Instead, the defense is being undertaken by the initial backers of Proposition 8. As for the prosecution, that's even more striking: the lead lawyers on the case are David Boies and Ted Olson, better known as the two opposing council in another case that took a swift path to the Supreme Court: Bush v. Gore. Olsen's involvement, in particular, has been a shocker for most people, because he's served in two Republican administrations, including as GWB's Solicitor General. When I first heard that this case had been filed, my first reaction was to think it was a joke, and my second was to wonder if this represented some elaborate form of sabotage. And it seems like the gay rights community may have had the same thought, because their reaction was to release a joint statement condemning the lawsuit: this case was too soon, too sweeping. Wait for more states to come on board first, for public opinion to shift more in favor of marriage equality and gay rights. A loss now could set back the cause even further, and there's no way the current Supreme Court would ever rule in our favor.
I am sympathetic to these arguments, and even share these concerns. The problem? The alternative proposed by these groups in the brief was to continue pushing for equality at the ballot box: pro-equality propositions, getting state legislatures to legalize same-sex marriage, etc. But there's one serious downside to this approach: it's not working. California, Maine, New Jersey, New York. How many more failures do we need? Even Washington only barely managed to pass its domestic partnerships bill. Add that to the fact that only one state -- New Hampshire -- has given same-sex couples the right to marry without being forced to do so by the courts (Vermont did transition from domestic partnerships to marriage without legal coercion, but their initial domestic partnership was in response to a court order, so I'd say it falls somewhere in between), and I think it's pretty clear that going after the popular vote is not going to work, certainly not as a short-term strategy. Even if it were effective over the long run, civil rights should not be left up to the whim of the people. The last year or so has made this fact very clear.
I'm not knocking the state-by-state approach entirely -- it got the conversation started in a way that a national lawsuit probably never would have done, and the radical change in people's attitudes toward marriage equality in just the last 10 years has been staggering. But I'm starting to think that maybe the time for the slow march is ending. Maybe it's time to risk a giant leap forward.
The other thing that's made me more hopeful about the prospects for this case? Ted Olsen himself. His confidence is reassuring. He's been all over the media the last couple of weeks, stating the conservative case for marriage equality and explaining why, in the face of all this opposition, he still thinks the time is right. I strongly recommend both the article I linked above and this article on the case from the New Yorker, which goes into the history of the case, how the lawyers and plaintiffs were selected, and also details the liberal objections as I outlined them. There's also interesting comparisons to Roe v. Wade and Loving v. Virginia.
So what do you all think? Crazy, doomed crusade, a sorely-needed change in direction for the movement, or some of each?
Meanwhile, we watch and wait. There's a number of livebloggers and live Twitter feeds for anyone interested in following along; I found the ACLU's live Tweets to be particularly informative and entertaining, but they also signed off halfway through the proceedings and it's not clear whether they're going to be back. A few other options: Firedog Lake, The Prop 8 Trial Tracker, The American Foundation for Equal Rights. Thanks to Jed for the New Yorker link as well as the live blogs/Twitter streams!