Olson & Boies: Gays On Trial

Over at The American Prospect, Gabriel Arana discusses the risks and payoff inherent in David Boies and Ted Olson's gambit of taking the repeal of Prop 8 to federal court.

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.

As Arana notes and as we have discussed here many times, major LGBT rights groups did not and do not want this case brought in federal court until they are absolutely certain of a win, as a loss could potentially set the movement back for decades. But Arana says that even a loss would not necessarily be the disaster that LGBT groups 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.

(Tipped by JMG reader Huntington)