NYT on Timing Of Olson-Boies Prop 8 Federal Case

Monday's New York Times has an article on the much-debated "Olson-Boies lawsuit," formally known as Perry v. Schwarzenegger. Adam Liptak's piece begins with "In Battle Over Gay Marriage, Timing May Be Key":

In a San Francisco courtroom two weeks ago, a prominent lawyer opposed to same-sex marriage made a concession that could mark a turning point in the legal wars over the purpose and meaning of marriage.

The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?

“Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”

Unsurprisingly, the federal judge, Vaughn Walker denied Mr. Cooper's motion to dismiss the Olson-Boies lawsuit.

However, Liptak goes on to discuss the intra-community debate about whether the lawsuit will be "good for the gays" and generally seems to favor the argument that it is probably premature.

Mr. Olson’s problem, then, is that he may reach the Supreme Court too soon. Public support for same-sex marriage is gaining ground, particularly among younger people. But a majority of Americans remains opposed to the practice.

At the argument, Judge Walker seemed to share this concern. “Aren’t you just getting ahead of yourself by asserting this claim under the federal constitutional provisions?” the judge asked.

Mr. Olson responded by comparing his case to Loving v. Virginia, the 1967 Supreme Court decision that held bans on interracial marriage to be unconstitutional. But 34 states permitted interracial marriage when Loving was decided. Only six states permit same-sex marriages.

The Loving decision, moreover, came almost two decades after the California Supreme Court struck down a state law banning interracial marriage in 1948 in Perez v. Sharp. The California Supreme Court’s same-sex marriage decision is a little more than a year old, and it has been repudiated by the state’s voters.

[...]

“We should buckle our seatbelts,” [openly gay New York University Law] Professor [Kenji] Yoshino said. “A comprehensive vetting of the empirical issues by a judicial tribunal is welcome and long overdue. Walker’s trial bids fair to be a trial in an almost scientific sense of the word.”

There were 19 years between the first state Supreme Court (California) striking down its interracial marriage ban and the United States Supreme Court following suit nationally. The first state High Court to strike down a marriage law was Massachusetts in 2003 (although 10 years before in May 1993 the Hawaii Supreme Court had ruled that it was likely to find that state's marriage statute unconstitutional but the voters amended their state constitution in 1998 before a final ruling could be made).

So, if one measures from Hawaii's Baehr v. Lewin case, a ruling from the United States Supreme Court in 2012 would also be 19 years between first State Supreme court action to federal imprimatur, but the more apposite case is Massachusetts' Goodridge v. Dept. of Public Health which went into effect in May 2004. Following the Loving v. Virginia mathematics would mean the U.S. Supreme Court wouldn't legalize same-sex marriage nationally until 2023. Extending the analogy to the historical moment when interracial marriage was legalized nationally by then a majority of states would allow same-sex marriage, an unlikely prospect due to the 30 states where voters have amended their state constitutions to prevent their Courts and legislatures from expanding the definition of marriage to include same-sex couples.

Soon we will find out when (and whether) states will start repealing these anti-gay marriage constitutional amendments. More likely than not, California will be in the vanguard in that battle, too.