Unlikely bedmates

The debate about whether to grant gays and lesbians the right to marry has been framed as a dispute between liberals and conservatives. But look who’s defending the plaintiffs in Perry v. Schwarzenegger, the federal court challenge to Proposition 8 currently being heard in San Francisco.

In this corner, seeking to strike down Prop. 8 and defend the rights of gays and lesbians to marry, is lead co-counsel David Boies, a noted liberal who represented former Vice President Al Gore in Bush v. Gore, the U.S. Supreme Court case that decided the 2000 election.

In the same corner, seeking to do the very same thing, is noted conservative and lead co-counsel Ted Olson, who squared off against Boies in Bush v. Gore and ultimately emerged victorious. Olson was also a litigator for the plaintiff in Citizens United v. Federal Election Commission, the Supreme Court case that just overturned restrictions on the use of corporate money in political campaigns, a decision that was cheered by the Republican right.

So what is it about marriage equality that puts this “odd couple” at the forefront? According to Lawrence C. Levine, a legal scholar and professor at the University of the Pacific’s McGeorge School of Law in Sacramento, it’s not a strange pairing—on this issue. In fact, he says, it would be weird if either one had stayed out of the fight.

“The reason there are rock-star lawyers representing the plaintiffs in this case is because many view this as the major civil-rights battle of our time,” Levine said. It’s a milestone legal case, and “no one wants to be left out.”

Passed by a 52 percent majority of California voters in November 2008, Prop. 8 restricted marriage in the state to one man and one woman, putting an inglorious end to a summer-long dip in the marriage-equality pool for gays and lesbians. Last May, the California Supreme Court upheld Prop. 8, ruling that because of the way the state constitution is constructed, the initiative is legal.

The very next day, Olson and Boies announced their suit challenging the amendment’s constitutionality in federal court, on behalf of four California plaintiffs who were denied marriage licenses in 2009. The case, titled Perry v. Schwarzenegger, is currently behing heard by Judge Vaughn R. Walker, the chief judge of the United States District Court for the Northern District of California, in San Francisco.

The plaintiffs in Perry v. Schwarzenegger argue that Prop. 8 violates the U.S. Constitution, specifically, the “equal protection” and “due process” clauses, and that it singles out gays and lesbians for “disfavored legal status,” a process that was disallowed in a 1992 U.S. Supreme Court decision.

According to Levine, the pairing of Olson and Boies is one sign that the attempt to paint marriage equality as a partisan issue has fallen apart. Olson’s position as lead co-counsel, as well as the testimony for the plaintiffs of Republicans like San Diego Mayor Jerry Sanders, is “a wonderful statement that even within the conservative movement, and certainly within the Republican Party, there is vast disagreement about the treatment of gays and lesbians.” He noted the recent public support for marriage equality from Cindy McCain, in spite of her husband, Sen. John McCain’s opposition, as more proof that “the Republican Party is quite divided on it.”

He also points to evidence that this is a generational issue rather than a partisan one. “All the data shows that there’s a gigantic disconnect on this issue between younger and older people,” Levine said. “Even young conservatives; they just don’t get why this is such a problem in some segments of society.”

Vikram Amar, the associate dean at the UC Davis School of Law, agrees with Levine on that point. “No intelligent person thinks that voters will fail to support gay marriage in the next generation.”

Like Levine, Amar is impressed by the amount of evidence being put forward in support of the rights of gays and lesbians to be covered under the “due process” and “equal protection” clauses. However, he doesn’t think the U.S. Supreme Court will be likely to agree—at least for now.

“I don’t think the plaintiffs have much of a chance of succeeding at the end, but this is about posterity,” Amar said. The case is “laying a foundation for a later return to this issue,” and it can provide ammunition “for political battles in state after state.”

Amar thinks that the time is not right for a sweeping pronouncement on gay rights from the U.S. Supreme Court. If the Ninth U.S. Circuit Court of Appeals strikes down Prop. 8, the Supreme Court would be forced to step in, and “there’s no way they’ll let that decision stand.” In terms of expanding legal rights for marriage equality nationwide, Aram said, “Whether there’s a national legal right, for [Supreme Court Justice] Anthony Kennedy, depends on how people around the country feel about it.” Kennedy is generally believed to be the swing vote on the court.

That lack of a national consensus on marriage equality, according to Amar, is “exactly why they’re going to lose.”

He points to previous landmark civil-rights cases, like Brown v. Board of Education, which declared racial segregation unconstitutional, and Loving v. Virginia, which overturned state bans on interracial marriage. In both cases, a number of state courts and legislatures had already ruled in favor of the expansion of civil rights. “Large parts of the country had already banned segregation,” he said. “The Supreme Court saw where things were moving and pushed it a little farther.” In the decades following those cases, no one suggested they had been wrongly decided.

On the other hand, a decision which had social consequence and was not so well-received was made in 1973, in Roe v. Wade. On the matter of legal access to abortion, there “was no consensus.”

“Individual states were all over the map on it, and 30 years later, it’s as contentious as it ever was,” Amar said. “Today, if you criticize Brown v. Board, you’re a nut. If you criticize Roe v. Wade, you’ve got a point, at least to most people.”

Those historical precedents lead Amar to believe that Perry v. Schwarzenegger will be the first of many cases, as well as political fights, on marriage equality.

Not necessarily, Levine averred, suggesting that the outcome depends more on the scope of whatever decision Judge Walker renders. Should Walker render a decision that’s broad in scope, the Supreme Court will have to hear it. That would mean, say, a ruling “that the ‘due process’ and ‘equal protection’ [clauses] prohibit the heterosexual monopoly on marriage.” Such a decision would mean that no state could prohibit gay and lesbian marriage and would almost certainly be overturned by the court.

On the other hand, if the decision is in favor of the plaintiffs but takes a narrower view, Levine offered, it’s entirely possible that the Supreme Court would let it stand. If the decision is predicated on California’s unique history with marriage equality, including the facts that “the Legislature passed marriage-equality bills twice and that the state Supreme Court ruled a marriage ban unconstitutional,” the ruling and might be allowed to stand. “If it just affects California,” Levine said, “if the judge draws up the ruling that narrowly, the Supreme Court might allow Prop. 8 to be overturned without addressing the larger constitutional question.”

Bottom line? Don’t expect any quick answers. “It is going to be years before this case is argued before the U.S. Supreme Court,” Levine said, “if it’s argued at all.”