Legal Commentary

I can't add anything more to all the postings about the inspiration and awe so many of us felt last night as Barack Obama won the election, so I won't try.  But, and keeping in mind that I've already posted once on Prop. 8 directly and once indirectly, I feel a need to say a few things about the result last night and the road ahead.

First, proponents of same-sex marriage rights have a right to feel an acute sense of an opportunity just missed.  A "no" vote on Prop. 8 would have been immensely influential in solidifying marriage rights in the United States, given the sheer size of California.  The near-final result is not particularly close as a percentage matter (52.5 to 47.5), but a swing of 250,000 votes would have changed the result.  Not exactly a nail-biter but close enough to regret.

Should proponents have held off on suing, or Mayor Newsom refrained from granting the licenses?  After all, the California legislature had twice passed bills granting marriage rights; in one sense, we were a Democratic governor away from winning, and winning in a way that would have blunted any judicial tyranny argument.  But hindsight is always 20-20, and I wouldn't presume to criticize the politicians and plaintiffs and lawyers who made the decision to go. (Indeed, while I don't have the chronology handy, it might have been Mayor Newsom's action that prompted the legislature to act.)   And every day of delay is a day that matters to the men and women involved: think of Del Martin, who lived to marry her partner of over 50 years only because of the court decision that Prop. 8 overturned.

What now?  The ACLU, Lambda Legal Defense and others have filed suit, as has Gloria Allred (a Loyola alum!) arguing that Prop. 8 is a major change (a "revision") to the California Constitution, which therefore required the legislature to begin the process.  I can't comment on the merits of the argument but it seems, on the face of it, a colorable one.  (These groups raised this issue when Prop. 8 qualified for the ballot but the court declined to decide the issue since it would have been mooted if Prop. 8 had lost.)  I've heard this claim being described as a long-shot but I'll let others more versed in California constitutional law comment on that.

I hope advocates don't make other, more radical claims.  I've heard people talking about arguing that Prop. 8, when combined with either the suspect class status of sexual orientation or the fundamental nature of the marriage right, requires that civil marriage be rescinded entirely, with presumably only a  non-discriminatory civil union status remaining.  The technical merits of the claim aside, I can't imagine a judge accepting it.  More importantly, that argument strikes me as a public relations catastrophe: after arguing for months about the importance of marriage it would be seen as a scorched earth policy of denying the right to everyone rather than continuing the hard work of obtaining the right for ourselves.  I can't imagine lawyers pressing this argument, and I hope they don't.

So what now?  Dale Carpenter is probably right that there won't be same-sex marriage in California for at least a decade.  The action will have to shift to other states, probably New York and some New England states, though it would be nice to see an upper Midwest or Pacific Northwest state with a progressive bent  added to the list, to de-regionalize it.  Overall, the slog will now be even slower now that California's influence won't be on the marriage-rights side for a while (it was never going to be fast, given all the anti-marriage amendments across the states).

Whether the fight should stay in the courts is a hard question.  I recently reviewed several books on same-sex marriage rights, including one by Bill Eskridge and Darren Spedale that analyzes the Scandinavian experience with legal rights for same-sex couples.  That book remarks on the (at least partially) consensus-driven nature of the campaign in those countries, and suggests that incremental, consensus-driven progress through the legislative process as a model for the United States.  I'm sure that agument will be given a new look now that the California court victory seems likely to be undone.

Finally, a personal note.  As someone who just recently married his partner I felt last night's result personally.  Despite all the rationalizations I can make, it is in fact hard to look at my fellow citizens today knowing that a majority of them that showed up to vote voted to prohibit my partner and me from enjoying the same legal approval for our relationship that they take for granted.  All I can do is be grateful for Obama's victory and the long-term promise of national healing it represents.