Why The Federal Lawsuit Against Prop 8 is Wrong

The day after the California Supreme Court announced its shameful ruling upholding Proposition 8, former Bush Administration Solicitor General Ted Olson and David Boies Gore's attorney in the classic Bush v. Gore announced a federal lawsuit challenging the legality of Proposition 8 under the United States Constitution.

The LGBT organizations were not amused:

The groups released a new publication, "Why the ballot box and not the courts should be the next step on marriage in California." This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised "Make Change, Not Lawsuits," which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.

Pam at Pam's House Blend has posted a lengthy analysis of the implications of the federal lawsuit for the generally accepted strategy of the national LGBT civil rights organizations. She asks two Questions of the Day:

* is Boies' and Olson's rejection of the current legal strategy supported by our orgs a tactical error for the marriage equality battle? It represents a "Hail Mary" approach, polls and pols be damned, to solve the patchwork problem of uneven equality around the country all at once, taking the moral high road. But it's a chance the ball will be dropped and the setback with a loss could seriously damage the movement for marriage equality

* is pursuing equality on the path our LGBT organizations represent a sound strategy? The path of taking the state route gains rights for gay and lesbians with each success -- and it also ends at SCOTUS. However, it forces those in states with constitutional bans on marriage equality to languish without full civil rights until a favorable decision at that level at some unknown point in the future. It also relies on additional gains that can be made with the repeal of DOMA, for instance, something also promised but that we may not see any time soon.

My answer to both questions is Yes and one of the smartest legal minds in the LGBT community, University of Pennsylvania Law Professor Tobias Wolff agrees with me:

In 1972 -- 5 years after Loving v. Virginia, the anti-miscegenation case -- the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality. In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal "for want of a substantial federal question." This is a type of action that the Court uses only infrequently -- even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided -- in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court's earlier action.

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What does all of this mean for the Olson / Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it's entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.

Two more quick points. This kind of "dismissal for want of a substantial federal question" is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim -- that the federal government can't discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints -- in the end, they do not make the more careful argument but instead just go for broke.

What do you think?