Prop. 8 Challenge Puts Homosexuality On Trial

By Gabriel Arana, The American Prospect:

On Nov. 4, 2008, when the polls closed on the West Coast and media outlets reported that California voters had passed Proposition 8, gay-rights supporters across the country were stunned. How could the purported gay haven of California -- home to Hollywood, Harvey Milk, and the Castro -- have rejected same-sex marriage?

It was an odd cultural moment, infused with the countervailing energy and promise of Barack Obama's victory. While progressives across the country danced in the streets chanting, "Yes We Can," angry gay-rights supporters gathered on the steps of the state Capitol in Sacramento carrying signs that expressed their indignation: "No More Mr. Nice Gay." As Obama declared in his victory speech, the ground had shifted, but in the Golden State, it had moved in opposite directions.

After months of scapegoating, soul-searching, and regrouping, gay-rights leaders settled on a two-part strategy: Fight the measure in state court and work on overturning it at the ballot box in 2010 or 2012. The state Supreme Court challenge to Prop. 8, which argued that the measure was not an "amendment" to the California Constitution but a "revision" requiring legislative approval, was widely considered a long shot. Few were surprised when the court upheld Prop. 8.

What did come as a surprise was the news, that same day, that two relative strangers to civil-rights litigation, David Boies and Ted Olson, had filed a suit against the amendment in federal court. It was a decision so rash that it could only have come from outsiders. Olson, a prominent figure in the conservative legal movement, had represented George W. Bush in Bush v. Gore, a case in which he faced off against Boies, a high-profile lawyer who made his name defending Wall Street, not civil rights. They intend to take their challenge to Prop. 8 all the way: The case, Perry v. Schwarzenegger, is scheduled to go to trial in January, and it is widely expected to move on to the 9th Circuit Court of Appeals and the Supreme Court.

After the announcement, nine organizations -- including Lambda Legal, Human Rights Campaign, and the American Civil Liberties Union -- shot back with a joint memo warning, "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."

At the press conference announcing the suit in Los Angeles, Olson dismissed this concern with a dash of self-mockery. "Both David and I have studied the court for more years than probably either one of us would like to admit," he said. "We think we know what we are doing."

For decades, groups like the ACLU and Lambda have taken an incremental approach to fighting for gay rights in court, concentrating on establishing legal precedents and popular support in states before going federal. In California, Connecticut, New York, and Iowa, gay-rights attorneys have pursued many big-ticket cases, with mixed results. But in federal courts, their aims have been more modest; it was only in 2003 that Lambda succeeded in decriminalizing sodomy nationwide.

To some, both within the movement and outside it, this tentative approach has been frustrating. As Olson said, "People should not have to beg to be treated equally or wait for decades for popular approval to be treated equally." But even among those of us who believe LGBT Americans deserve equal rights now, the fear is that jumping the gun will lead to harmful court precedents and social backlash, as it did when the Hawaii Supreme Court ruled in favor of civil unions in 1993. Over the next 10 years, bills banning same-sex marriage were passed in 40 state legislatures. Some also blame the Hawaii decision for inspiring the 1996 Defense of Marriage Act, which prevents the federal government from recognizing same-sex marriages performed in the states. Strategy matters, gay-rights leaders say, because the threat of backlash hasn't gone away.

"The debate is never about whether equality means equality for gay people, too. There have been debates about timing as long as there have been queer people to have a conversation," says Jennifer Pizer, the Lambda attorney who argued the state-level challenge to Prop. 8. "The question always is a matter of how much development of the doctrine and how much social and political change should be achieved before asking the ultimate question."

Perry v. Schwarzenegger indeed asks the "ultimate question" of whether gays have a federal right to marry, but because the case is alleging that Prop. 8 violated the equal-protection clause of the U.S. Constitution, the federal court decision will have implications for gay Americans in nearly every arena of public life, from housing to parenting to military service. The court is set to consider questions as wide-ranging as what it means to be gay and whether it affects one's contribution to society. It's not just marriage rights on trial; it's homosexuality itself.

Organizations like Lambda and the ACLU may have had their reservations about bringing the case so soon, but the groups grudgingly attempted to join Olson's federal challenge because it will have such widespread implications. However, Northern California District Court Judge Vaughn Walker ruled in August that their interests were already represented and barred all groups except for the San Francisco city attorney's office from entering the suit. This leaves Boies and Olson at the helm of the largest gay-rights case to date.

Attorneys at Lambda and the ACLU expressed dismay at Judge Walker's ruling but have offered their advice to Boies and Olson and plan to continue filing amicus briefs, even if they are not official parties to the suit. However, gay-rights advocates not directly involved in the litigation -- and not bound by legal etiquette -- are more wary. "It's very sweet to think that we're going to win on moral grounds, but it's naive," says E.J. Graff, resident scholar at the Brandeis Women's Studies Research Center. "They have no real grasp of the bias facing lesbians and gay men, or of how to make lasting social change."

The fact that two straight, white-shoe lawyers have taken on the case shows the broad support gay rights have gained. But there is also the sense that Boies and Olson stand to lose nothing. The possible reward, on the other hand, is clear: For two attorneys who have pursued high-profile cases throughout their careers, this could be the defining win that puts them in history books. Perry v. Schwarzenegger is one of the rare cases that redraws battle lines and upsets traditional alliances. Like Brown v. Board of Education or Roe v. Wade, it has the potential to change American life.

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The stakes are high. If Perry v. Schwarzenegger reaches the Supreme Court and Boies and Olson are successful, gays and lesbians nationwide would not only have the right to marry, they stand to gain many of the legal rights they have sought for decades. Don't Ask, Don't Tell would be invalidated, as would employment discrimination against gays and lesbians. In the eyes of the law, gay people would be equal to straight people, and any legislation that discriminated against them could be challenged and easily struck down against this precedent. However, defeat could legitimize such discrimination against LGBT Americans, making it far more difficult to sue for parental or housing rights. The door to any federal litigation on marriage equality would be shut for decades.

This is risky because Boies and Olson are entering a legal no-man's land. The coalition of lawyers who fought to overturn Prop. 8 at the state level decided not to mount a federal challenge "because federal litigation puts in play the federal doctrines that as yet are underdeveloped," Pizer says. Marriage and family law tend to be state law, she explains, and the federal framework is sketchy.

This is why the judge in the case has asked the plaintiffs (Boies' firm, Boies, Schiller & Flexner, and Olson's firm, Gibson, Dunn & Crutcher, and the City of San Francisco) and the defendants (supporters of Prop. 8, represented in this case by Charles Cooper, former assistant attorney general under Ronald Reagan, and the conservative Alliance Defense Fund) to address a broad range of issues, from whether gay people make suitable parents to whether a person's sexuality is susceptible to change. In effect, the court's primary undertaking will be to define "gay" -- and to determine whether it is in the interest of the state to discriminate against people who fall into that category.

The law allows discrimination so long as it serves a reasonable purpose, such as ensuring public safety by preventing 5-year-olds from driving. The defense is arguing that it's reasonable to discriminate against gay couples because restricting marriage rights to heterosexual couples "promotes stability and responsible behavior in naturally procreative relationships" and maintains the bond between children and their biological parents.

Boies and Olson are arguing that such discriminatory laws are illegal because gay Americans constitute a "suspect class," a group of people -- such as racial minorities, religious groups, and foreign-born citizens -- who qualify for special protection. Laws that target these groups are immediately "suspect" and have to serve a "compelling state interest" -- national security, for instance. Passing the law in question must be the only way of achieving the end. In practice, this standard is so high that once a group of people has been deemed a suspect class, courts nearly always find in its favor.

The legal issues in Perry mirror those in Loving v. Virginia, the 1967 case that struck down miscegenation laws. In Loving, the court ruled that there was no compelling state interest for outlawing interracial marriage and that marriage was a fundamental right. But unlike Loving, by which time race had already been established as a suspect classification, the Supreme Court has not previously considered whether gay people are a suspect class. Courts, though, have generally granted suspect classification to groups that are well-defined and possess an "immutable" trait; share a history of discrimination; and are politically powerless to protect themselves. In essence, Boies and Olson must prove that gay Americans deserve the same rights as everybody else because they are, paradoxically, different. The plaintiffs have said they will have psychologists and scientists testify that being gay isn't something you can change. To establish political powerlessness, Boies and Olson point out that there are no openly gay senators, governors, or Cabinet members and that gays and lesbians have been unable to get nondiscrimination legislation passed on a national level -- facts that the defense has not challenged.

Even if Boies and Olson are not able to establish suspect classification, there is a Supreme Court precedent against discriminatory laws whose sole motivation is ill will. (In 1996, the court ruled in Romer v. Evans that a Colorado ban on nondiscrimination ordinances was driven solely by anti-gay sentiment and therefore did not have a rational basis.) That's why Boies and Olson also plan to show that Prop. 8 was motivated by prejudice. Despite pushback from the defense, the "Yes on 8" campaign has been ordered to turn over internal e-mail communications and strategy documents as well as allow its leaders to be questioned on the stand. Lawyers for the defense have said this tactic has a "chilling effect on [free] speech" and have called it a "fishing expedition," but those who support it say it will expose the anti-gay motivation that lies at the heart of matter.

Legal experts say getting judges to recognize gays as a suspect class will be a tough sell; the Supreme Court has long refused to make age or disability a protected category. And even those who think the legal arguments are compelling say that swaying a conservative Supreme Court is the real challenge. "If you just look at the criteria, they'll be able to make a very powerful case," says William Eskridge, a professor at Yale Law School who was involved in gay-marriage litigation in the early 1990s. "[But] if the case comes to the Supreme Court in the next three years, given its membership, the conventional wisdom is that they don't have five votes."

But Boies and Olson maintain that the legal landscape has changed significantly in the wake of court decisions like Romer and Lawrence v. Texas, which decriminalized sodomy in 2003. These cases, they argue, have chipped away at the legal justifications for discriminating against gays and lesbians, making the court more likely to see them as a persecuted minority. "We think we have a very strong argument based on the factors the court has identified in establishing a suspect class," says Theodore Boutrous, a partner at Gibson, Dunn, & Crutcher who is co-counsel with Olson. "We are confident the courts will agree with us."

Prop. 8 defendants are fighting the classification of gays as a protected minority on two grounds. First, they say, gays are not politically powerless. "They're pointing out so far that Harvey Milk was elected," Boutrous says. "That's a weak argument."

Second, the defense argues, homosexuality is not an unchangeable characteristic. This is where things get weird. Defense lawyers plan to subpoena California's domestic-partnership and marriage registries and note any matches. They also argue that sexual orientation falls on a continuum and that sexuality is "fluid," a decidedly nontraditional view that has taken root in college queer-studies departments but not the sort of thing you'd ever hear from Focus on the Family's James Dobson.

Eskridge calls the debate about whether homosexuality is immutable a "lavender herring." He points out that religion is fairly easy to change, yet Catholics and Jews are considered protected minorities. The real question both sides should be looking at, he says, is whether sexuality is a central component of one's identity. As Olson pointed out at an October pre-trial hearing in which the defense sought to dismiss the case, "An individual does not experience constant shifts in his or her sexual orientation."

Boies and Olson, however, are hedging their bets. If the courts find that gays do not qualify as a suspect class and do not have a fundamental right to get married, then all the Alliance Defense Fund has to do is show that barring gays from marrying serves some reasonable purpose, which is why both sides are also arguing about what marriage is for.

As one might expect, the defense has argued vigorously that marriage is for procreation and that extending it to gay couples is a risky social experiment. But their arguments in court share little of the vitriol of the "Yes on 8" ads, which warned California voters that children would be taught about homosexuality in school and that pastors would be required to perform same-sex marriages. In contrast, those representing Prop. 8 in court have stipulated that being gay does not affect one's social or vocational abilities and that it's not a mental illness. And while they assert that sexuality is malleable, they acknowledge it might be harmful to try to change it (a radical departure from the talking points of many organizations that supported Prop. 8, which maintain that people can be "cured" of homosexuality). There's also been little talk about whether it's morally wrong to be gay and no mention of the "homosexual agenda."

Instead, attorneys who oppose gay rights increasingly use "judicial activism" or "religious liberty" as a proxy for talking about gay marriage. Defense co-counsel David Thompson says he would not personally support gay marriage if it were enacted by a legislature or via referendum, as it was recently in Vermont, but "it would be lawful." He continues, "It's perfectly permissible for people to make that determination."

Eskridge thinks the defendants are afraid of being perceived as bigoted. "Now that we've had legislatures starting to do this, the opponents see the likelihood that a large chunk of America will recognize same-sex marriage," he says. "They do not [want to] go down in history as the George Wallaces of the same-sex marriage episode."

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There is something farcical about having a court make a determination about the nature of human sexuality and the purpose of marriage. These are perennial topics of philosophical and academic debate, hotly contested in college classrooms, across the dining-room table, and sometimes on cable news. The soaring rhetoric of the culture wars has made cameos in the courtroom, but most of the discussion has been prosaic. The law, for all its gravitas, is ultimately about deciding who has to pay for the fender bender, not whether it would have been better to walk.

Prop. 8's defenders seem most self-assured when speaking in broad axioms. According to the motion filed by the defense in Perry, "the purpose of marriage [has] always been to promote naturally procreative sexual relationships," and "every civilized society in recorded history [has] limited marriage to opposite-sex relationships." But when asked concrete questions, as the defense was at a pre-trial hearing in October, lawyers have been hard-pressed to come up with an answer.

"All right, let's play on the same playing field for once," Judge Walker told lead defense counsel Charles Cooper. "I'm asking you to tell me how it would harm opposite-sex marriages."

"Your honor, my answer is: I don't know," Cooper responded. "I don't know."

Thompson explains that the difficulty in answering the judge's question stems from the fact that same-sex marriage is a relatively new phenomenon, one that has not been studied extensively by social science. But in the same hearing, Cooper was also at a loss when Judge Walker asked him to justify the view that marriage was for procreation.

"The last marriage that I performed ... involved a groom who was 95, and the bride was 83," Walker said. "I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?"

"No," Cooper answered.

Outside the courtroom, gay-rights opponents have very different answers to Judge Walker's questions. "The law affects marriage primarily through its capacity to 'name a shared reality,'" says Maggie Gallagher, president and founder of the National Organization for Marriage, which opposes same-sex marriage. "Gay-marriage advocates understand this on their side of the issue -- the name matters, because words matter, symbols matter, naming reality matters."

The quandary for the court in January is, in effect, how to name a reality that we do not all share. The real fight is not over marriage itself. Perry v. Schwarzenegger is only about gay marriage in the sense that Roe v. Wade was about privacy, or Brown v. Board of Education was about school choice. The case is really about the place of gay people in society. Just as reproductive rights allowed women not to be defined by childbirth and desegregation meant skin color no longer determined where you sat on the bus, legal equality for gays would mean that, at least in theory, one's sexual orientation would not determine where he or she fit in.

But it's important to remember that Roe did not guarantee gender equality, nor did Brown end racism in America. Women are still promoted and paid less than men, and a large share of African Americans are still entrenched in poverty. After the stinging marriage-equality setback in Maine on Nov. 3, gay-rights supporters are looking to the federal courts with renewed hope. But Perry will not be a panacea, either.

As Eskridge points out, the best turn the Prop. 8 case could take is that it would be rendered moot by California voters in 2010 or 2012. But even if Boies and Olson lose the case, it would not be the disaster that some gay-rights supporters fear. A Supreme Court loss could galvanize a movement that, at least in California, was dumbstruck that gay rights didn't just come as a matter of course. Indeed, as legislatures and city councils in D.C., New York, and Washington state move to enact gay rights, the promise of equality seems to lie increasingly in local, grass-roots efforts. Decades of fervent activism are what made the legislative victories in Vermont and New Hampshire possible, and they are an indication of public support that no court can grant. It is better not to be the victim of discrimination in the first place than to have the law on your side when you are.

The assumption among gay-rights supporters -- and the time frame that's often thrown around -- is that "in 20 years" we will have full equality. If anything, however, the Prop. 8 imbroglio and its legal fallout should serve as a reminder that equality isn't a once-and-for-all achievement. Rights can be rescinded, the ground can shift again. Nor is it an eventuality. Despite Martin Luther King Jr.'s assurance, the arc of history does not bend in any direction -- much less toward justice -- on its own.

Reprinted with permission from Gabriel Arana, "Gay on Trial," The American Prospect, Volume 20, Number 10: November 23, 2009. www.prospect.org. The American Prospect 1710 Rhode Island Ave. NW. Floor 12, Washington, DC 20036. All rights reserved.

Gabriel Arana is the editorial assistant at The American Prospect.