Shooting the Moon on Prop 8

Lyle Denniston has an analysis of the briefs filed in the Prop 8 case before the Supreme Court, particularly the brief filed by Ted Olson and David Boies, the unlikely legal tandem challenging the law. He notes that their brief takes a very aggressive pro-equality stance:

Accusing the backers of California’s ban on same-sex marriage of seeking to turn marriage into an institution that serves only the government’s interests and does away with any private right to wed, the opponents of Proposition 8 on Thursday challenged the Supreme Court to strike down that measure as a stark contradiction of history and the Constitution.

The two California same-sex couples’ fifty-four-page brief was a bold attempt to portray the constitutional idea of marriage equality as a victim of homophobia, and to persuade the Court not to settle for a California-only decision, or for one that moved gays and lesbians only a bit closer to marriage, but rather to give them a right to wed as fully as any other couple has, regardless of race, sex, or sexual orientation.

With such a sweeping approach, the brief took a considerable risk that it might be more than the Justices were ready to accept. But it also has the potential virtue of making it easier for the Court to settle for a ruling for same-sex marriage on narrower grounds – as the Ninth Circuit Court had done in striking down Proposition 8 a year ago.

Theodore B. Olson, a prominent Washington attorney who — along with an equally high-profile New York lawyer, David Boies — had fashioned their case from the beginning to be a broad one, told reporters in a telephone conference call: “We thought it was extremely important to put the entire panoply of the case before the Court. It was appropriate and necessary to paint the broad picture, and let the Supreme Court select the kind of decision within that range; we would like the decision to be as fulsome as possible.”

This really is a risky approach. This kind of strategic decision often has a major effect on the outcome of the case and they can backfire if the attorneys demand more than the court is willing to do.

And as Denniston notes, they’ve tailored the brief specifically to Justice Kennedy, citing his opinions in the two most important gay rights decisions in history, Lawrence v Texas and Romer v Evans.

Before putting forth that broad vision of the constitutional controversy over Proposition 8, however, the brief opened with a searing attack on the motives and the policy aspirations of the sponsors of that ballot measure, which California voters approved in November 2008.

Under the logic of that ballot proposition, the document argued, a state would be free to choose to deny marriage rights to any couple incapable of bearing children. Further, they contended, the philosophy behind the measure would allow a state to ban marriage altogether if a state chose to pursue a society that was not fully committed to producing children…

It argued: “Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians are not ‘okay,’ that their life commitments ‘are not as highly valued as opposite-sex relationships,’ and that gays and lesbians are different, less worthy, and not equal under the law.”

The measure, it added, “prevents gay men and lesbians from marrying, thereby making them ‘unequal to everyone else.’” That quoted phrase is from the Supreme Court’s decision in the case of Romer v. Evans, striking down a Colorado constitutional amendment that barred homosexuals from trying to gain new laws protecting them from discrimination. The Romer decision established the constitutional principle that states may not impose a “special disability” on gays and lesbians out of hostility to their sexual identities.

And like the DOJ’s brief in the DOMA case, Olson and Boies argued for heightened scrutiny for cases involving sexual orientation:

In addition, the brief argued that the Court should use this case to establish — for the first time — that laws that discriminate against homosexuals should be judged by a more rigorous constitutional standard. At one point, the brief appeared to be arguing that the Court should use the very toughest test: whether a discriminatory law can survive “strict scrutiny.” Few discriminatory laws can pass that test, because it requires proof of a “compelling government interest” and proof that the measure is “narrowly tailored” to promote that interest.

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