Thursday, May 28, 2009

An Official Article 19 Prediction
I know lots of activists think this Supreme Court challenge of same-sex marriage bans is a bad idea. The cause is making decent progress going state to state in legislatures and state courts, the argument goes, and the last thing we need is the highest court in the land issuing a bad decision it will take years and years to undo. This is just the kind of cautious cynicism that would ordinarily speak directly to my jaded heart.

But not this time.

I would like to make a prediction. I think the Supreme Court will take this case, and I think they will rule that denying marriage status to same-sex couples violates their constitutional rights. Here are my reasons:

1. The argument is just too powerful to ignore. When it comes right down to it, and judges are face-to-face with an equal protection requirement, they have a hard time - California notwithstanding - explaining with a straight face why same-sex couples can be relegated to a different status legally than hetero couples. (See Iowa)

2. The import of having Boies and Ted Olson side by side on this can't be understated I think. Just a few years ago they went through this bitterly partisan battle and now they are coming together not for something trivial but for the idea that the Constitution guarantees equal rights to all citizens. In addition, the conservatives on the court are accustomed to agreeing with Olson. It will be difficult for the court to resist the moment.

3. It's inevitable and everyone knows it. They can be on the right side of history, or on the wrong side. They can be Plessy, or they can be Brown.

4. We only need 5 votes. Presumably, hopefully, the 4 liberal-minded Justices (Souter/Sotomayor, Breyer, Ginsburg, Stevens) are already there. Thomas and Scalia are already against. That leaves just one out of Alito, Roberts and Kennedy, just one of those three whose general conservative views don't extend to anti-gay sentiment. There are plenty of that kind of conservative out there (see Olson). Importantly, Kennedy already wrote the opinion to invalidate sodomy laws. He got 6 votes for that, and while we lost O'Connor that still leaves 5. I don't see why the same 5 wouldn't come together over this issue. But I could almost as easily see Roberts joining in.

5. Public opinion is already shifting on this issue. By the time the case could wind its way through the courts and be heard by the Supremes, we'll be that much farther along.

6. I know that the ACLU is a proud and essential organization with many important victories. I love what they stand for and almost always agree with them 100%. They say the time is not right for this challenge. Olson says the time is right. And he's won more than 75% of the cases he's taken to the Supreme Court. So maybe he knows a thing or two about where the court is.

Admitedly, there's not much middle ground here. On this timing issue, either I'm right (and Olson is), or the ACLU is right and he's made a big mistake. A loss *would* be a damaging setback. But recently I read "Ellory's Protest", the story of Ellory Schempp who as a teenager decided not to participate in Bible readings and prayer recitation at his Pennsylvania public school in the 1950s and was ostracized and punished by school officials for his refusal. He got a lawyer and after years of legal argument the Court ruled that such religious exercise by public school officials is unconstitutional.

We don't have mandatory Bible readings in schools today because of the decision brought on by a courageous plaintiff and a determined lawyer. And fighting the lawyer all the way? With protests that it was the wrong time and the wrong case? The ACLU.

They were understandably overly cautious then, and I hope and believe they are now too. One thing I know: if they wait until they're sure to win they will have waited too long. The justice of too many will have been denied, and besides, that's no way to make history. Anyway, we don't have Ellery Schempp and his no-name attorney. We have David Boies and Ted Freakin' Olson. That's plenty to kick ass with. Time to do it.

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