why_the_ballot_box.pdf (application/pdf Object)

why_the_ballot_box.pdf (application/pdf Object)

Why the ballot box and not the courts should be the next step
on marriage in California.
Now that the California Supreme Court has refused to strike down Proposition 8,
we need to go back to the voters. Since we lost Proposition 8 just six months ago, and
since a ballot initiative to repeal is likely to require a huge investment in time and money,
it is tempting to at least try a federal lawsuit first. But it’s a temptation we should resist.
It is by no means clear that a federal challenge to Prop. 8 can win now. And an
unsuccessful challenge may delay marriage even longer, not only in California but in
other states, and seriously damage the rights of LGBT people on many other important
issues.
Rather than filing premature lawsuits, we need to talk to our friends, family and
neighbors, and help them understand why denial of the freedom to marry is wrong. We
need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom
to marry in California. This is the moment to convince California and America that we
should have the freedom to marry.
History says the odds at the Supreme Court now are not so good.
The history is pretty clear: the U.S. Supreme Court typically does not get too far
ahead of either public opinion or the law in the majority of states. For example, few
states still had laws requiring racial segregation or outlawing interracial marriage by the
time the Court struck those laws down. Most states had already struck down or repealed
their own laws against same-sex intimacy when the Supreme Court finally invalidated
Texas's law.
Right now, we need to make gains in both public opinion and state law. The
current Supreme Court has been taking a pretty narrow view of civil rights and civil
liberties. Even the strongest gay rights decision the Court has issued—the Lawrence v.
Texas case striking down laws against intimacy for gay couples—explicitly commented
that it was not saying anything about formal recognition of same-sex relationships. The
arguments in the briefs are not the only thing that influences the Court’s decisions. The
climate of receptivity and momentum in the country on these issues matter as well. There
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is much we can and should do together to strengthen our hand before we put a federal
marriage case before the justices.
There is a lot to lose.
There are also serious risks if we go to the Supreme Court and lose, especially if
we’ve asked it to set aside state limits on marriage. We could still ask state courts to
strike down marriage bans under state constitutions, and we could still ask state
legislatures to pass marriage laws. But most state courts and legislatures pay attention to
what the U.S. Supreme Court says about constitutional principles of fairness and equality.
It will be harder for us to get state courts to strike down laws excluding same-sex couples
from marriage (and many from civil unions, too) if the U.S. Supreme Court has said they
are okay under the federal constitution (take a look at how much the Connecticut and
Iowa Supreme Courts relied on analysis from the U.S. Supreme Court in their marriage
decisions).
There is a very significant chance that if we go to the Supreme Court and lose, the
Court will say that discrimination against LGBT people is fairly easy to justify, and that
same-sex couples can be denied the right to marry based on mistaken, antigay assertions
that LGBT people make bad parents. Indeed, we have recently lost marriage cases on
that very basis in the state high courts of New York, Maryland, and Washington, and in
intermediate appellate courts in Arizona and Indiana. Such a ruling from the U.S.
Supreme Court could hurt us badly in cases about parenting, schools, and government
jobs.
A loss now may make it harder to go to court later, and we may need to. It will
take us a lot longer to get a good Supreme Court decision if the Court has to overrule
itself. Let's not forget: it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme
Court decision that upheld Georgia’s sodomy law. That was fast for the Supreme Court.
And during that time, many LGBT Americans lost jobs, lost custody of their children,
and suffered other harms because the Bowers decision was taken as a license to
discriminate against us.
The limited DOMA challenge filed by Massachusetts couples is less risky.
In 1996, Congress passed a law saying that the federal government would
discriminate against the marriages of same-sex couples (the so-called “Defense of
Marriage Act” or DOMA) by denying them all the protections that the federal
government gives to all other validly married couples. As a result, the federal
government for five years has been discriminating against the married same-sex couples
of Massachusetts. It will, as things now stand, continue to deny equal treatment to samesex
couples that marry in Connecticut, Iowa, Vermont, and Maine, and to those who
married in California in 2008.
There are two ways to get rid of "DOMA": going to court to have the law
declared unconstitutional or getting Congress to repeal it (something President Obama
has said he supports). These approaches can work together, and we are doing both.
We’re working with members of Congress on repeal legislation now. In addition, Gay &
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Lesbian Advocates & Defenders (GLAD) has filed a thoughtfully constructed lawsuit in
federal court on behalf of a diverse group of plaintiffs married for years in Massachusetts.
These plaintiffs are eligible for a range of federal benefits, applied for those benefits, and
were denied following extensive administrative procedures. If that lawsuit succeeds, it
should establish a principle that will be fatal to DOMA, and we can bring other lawsuits
addressing other federal protections to build on it.
GLAD’s lawsuit challenging DOMA is more modest than a case claiming there is
a federal constitutional right to marry. Until DOMA was passed, the federal government
deferred to the states' determinations of marital status. DOMA creates a "gay exception"
and says the federal government will not honor a state's marriage of same-sex
couples. GLAD’s legal challenge to DOMA simply asks that the courts tell the federal
government to go back to doing what it did before—recognizing all marriages that a state
has approved. In contrast, a federal case arguing that it is unconstitutional not to let
same-sex couples marry would ask the courts in effect to order that couples be allowed to
marry in every state, overthrowing most state marriage laws. That case asks for much
bolder action from the courts, and it requires a much bigger development in constitutional
law. We think the courts aren’t ready to do that yet.
The bottom line.
A marriage case based on the federal constitution may well not win the right to
marry back in California. A loss would likely set back the fight for marriage nationwide,
and hurt LGBT parents, employees, and students all over America.
We lost the right to marry in California at the ballot box. That’s where we need to
win it back. Reversing Prop 8 at the ballot in California will set a powerful political
precedent and help change the national climate. We can persuade the hundreds of
thousands of fair-minded but still-conflicted voters we need, if we do the work. So let’s
get started now.
May 2009