"The Win-Win Nature of LGBT Impact Litigation"
By Ryan McNeely
When Ted Olson announced his intention to partner with David Boies to challenge Prop 8 in federal court, many observers suggested that while his goals were noble, he was not “right about the timing.” Some gay rights groups, wary of Olson’s track record, actually did question his motives — and many went on the record to say explicitly that the decision to bring the suit was a mistake, that Olson would lose, and that this loss would do serious damage to the movement.
There’s a general hesitancy in some quarters to use the courts to advance marriage equality at all, the theory being that it actually does more harm than good in the long run. Matt responded to a nice example of this type of thinking, when Megan McArdle argued that “If socially conservative voters hadn’t felt they needed to protect themselves from activist judges, we wouldn’t be seeing these provisions written into state constitutions…In general, courts are the wrong place to press these sorts of claims.” In Lawyering for Marriage Equality, Scott Cummings and Douglas NeJaime address this head-on:
Finally, we find that the evidence in support of the backlash account’s causal claim is weak…By focusing solely on court decisions, the backlash thesis fails to account for the influence of nonjudicial factors. Specifically, the legislative push for domestic partnership in California motivated, at least in part, the statutory prohibition on marriage for same-sex couples embodied in Proposition 22. And during their television advertising campaign, Proposition 8 proponents emphasized the specter of same-sex marriage being taught in schools over the fact that the right to marry for same-sex couples derived from a court decision, suggesting that the schools issue resonated more powerfully with voters.
Now, a new report empirically validates this thesis: Prop 8 was almost certainly approved due to false and misleading advertising that had absolutely nothing to do with any sort of backlash against “activist judges.” Cummings and NeJaime also hit on a key point that somehow constantly gets ignored by the process nitpickers: “Opponents were mobilized to place a constitutional ban on the ballot irrespective of the form in which marriage equality was passed.”
In other words, marriage equality opponents use every possible tool at their disposal to advance their agenda, and supporters should do likewise. When marriage equality is mandated via court decision, opponents argue that it should be up to the legislature. When a legislature passes a marriage equality bill, opponents suddenly discover direct democracy. And if a majority of voters in a state eventually do approve marriage equality via ballot initiative, opponents are already geared up to sue on the grounds that they are being discriminated against. Complaints about process are simply a red herring — anti-gay marriage activists care only about results.
Finally, those who argue against the court-based strategy neglect to mention that when a court “forces” marriage equality on a state, people actually get to see the impact of same-sex marriage. It turns out that the most dire predictions of marriage equality opponents were demonstrably wrong, so much so that arguments that rang true to “moderates” even five years ago sound ridiculous and antequated today — but only because people have been able to see for themselves what same-sex marriage would bring.
By taking Prop 8 supporters to court, Olson and Boies forced them to defend their position not with misleading advertising but with focused, reasoned legal arguments. It turns out that they didn’t really have any. I know that many gay rights activists fear the Roberts Court and believe that the risk is simply too high that a favorable decision will be overturned, creating bad precedent. But I find it strange that people forget that it only took the Supreme Court 17 years to overturn Bowers v. Hardwick with Lawrence v. Texas, and in so doing, Justice O’Connor created an entirely new and valuable equal protection argument in order to make it appear as if she had not reconsidered her own position.
In short, regardless of how Judge Vaughn Walker ultimately rules today (the decision is expected between 4pm and 6pm EDT), and regardless of how the inevitable appeals play out, I think people who support marriage equality should recognize that even in the case of a potential defeat, Olson and Boies have done an incredibly valuable service to the cause.