Prop 8 and Its Aftermath: The Silver Lining
American Constitution Society Blog
By Holning Lau
June 6 2009

By Holning Lau, Associate Professor at Hofstra Law School and Co-Director of Hofstra's LGBT Rights Fellowship Program, Associate Professor Designate at UNC School of Law.

On May 26, the California Supreme Court upheld Proposition 8, the ballot initiative through which voters added a provision to the California constitution, limiting marriage to opposite-sex couples. In Horton v. Strauss, California's high court upheld the initiative against arguments that it did not satisfy procedural requirements for modifying California's constitution.

The decision struck a blow to the marriage equality movement. That blow, however, certainly was not fatal and, instead, can strengthen the movement in the long term.

Seeing the silver lining

Faced with this setback, proponents of marriage equality should find comfort in the fact that the decision was not entirely bad news. In at least three ways, a silver lining frames the decision.

First, the court held that Prop 8 is not retroactive. Eighteen thousand same-sex couples who married in California remain legally wed.

Second, the court emphasized that sexual orientation remains a suspect classification under California law-a rule that the court first announced in In re Marriage Cases, which paved the way for same-sex marriages in California. Treating sexual orientation as a suspect status is significant not only to California. The court's sound reasoning for treating sexual orientation as a suspect status can serve as persuasive authority, guiding courts in other states toward marriage equality.

Third, I am hopeful that the court's validation of Prop 8 will prompt more conversations that strengthen marriage equality in the long term. Sometimes, defeats galvanize progressive advocacy, especially advocacy in the court of public opinion.

We witnessed this dynamic when Prop 8 first passed. Facing defeat, supporters of marriage equality became more vocal than ever before. Many supporters began attending same-sex marriage rallies, even though they never did so during the season preceding the vote on Prop 8. Since Election Day, a growing number of people have been reaching out to friends and family to discuss the significance of same-sex relationships and marriage equality.

Personal conversations have enormous impacts in the court of public opinion. These conversations are likely a big reason why public support for marriage equality grew enough to motivate Maine, New Hampshire, and Vermont to legalize same-sex marriage without the judiciary pushing them to act. Such personal interactions are also one reason why a growing number of conservatives have come to support marriage equality.

Among these conservatives, Ted Olson drew considerable attention this past week. The ultraconservative Olson, who served under the Reagan and Bush 43 administrations, has joined David Boies, his former opposing counsel in Bush v. Gore, to challenge Prop 8 in federal court. When asked about his inspiration for taking this case, Perry v. Schwarzenegger, Olson replied:

If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.

Just as Prop 8's passing prompted the types of conversations of which Olson speaks, judicial validation of Prop 8 ought to stimulate similar exchanges.

Enriching conversations

Media coverage on Perry has overwhelmingly focused on the case's strategic significance. That coverage has unfortunately eclipsed the case's symbolism, which warrants greater attention.

As far as strategy goes, I agree with others that a federal lawsuit is premature, even though its doctrinal arguments are sound. The current Supreme Court may very well set bad precedent for same-sex marriage litigation. Gay rights organizations summarized this point in a recent joint statement.

If California passes a ballot initiative reversing Prop 8 in time, the lawsuit would be rendered moot before reaching the Supreme Court. It is worth noting, however, that the case may be on a fast track. Because a preliminary injunction is being sought, the district court may move quickly. Lower courts might also swiftly dismiss the case due to Baker v. Nelson, a failed same-sex marriage case from the 1970s.

In 1972, the Supreme Court dismissed Baker "for want of a substantial federal question." Commentators disagree on the precedential value of such summary dismissals. According to some commentators, lower federal courts will immediately dismiss the new lawsuit by citing Baker as controlling precedent, forcing the new case up to the Supreme Court. Others argue, however, that lower courts can sometimes review issues that the Court previously dismissed summarily.

At any rate, while the Perry litigation unfolds, proponents of marriage equality should make the most of the case by using its symbolism as a centerpiece for conversation. Olson's involvement is emblematic of growing support for marriage equality among right-leaning communities. Indeed, a CBS News/New York Times poll from April suggested that Republican and conservative support for marriage equality grew over the past five years from 10 to 18 percent and from 10 to 24 percent, respectively.

In recent months, Meghan Mccain has embodied that trend by pushing her fellow Republicans to support marriage equality. So has Steve Schmidt, John McCain's former campaign manager who cites his lesbian sister as an inspiration. Similarly, Dick Cheney mentioned his lesbian daughter last week when explaining that "people should be free to enter any kind of union they wish."

These developments should inspire conversations with right-leaning friends and family. Growing Republican support should prompt rich discussion on how same-sex marriage is not just a liberal cause, but a cause that advances mainstream bipartisan interests in supporting caring families.

It is worth noting that some progressive commentators have questioned whether both parties place too much emphasis on marriage. Why, for example, should healthcare coverage be tethered to marriage rights as opposed to being universally afforded? These sorts of questions should certainly be part of our conversations. Critically assessing how benefits are tethered to marriage is an important project.

Even as we think critically about the rights and responsibilities associated with marriage, conversations across the political spectrum illuminate the fact that legalizing same-sex marriage goes a long way toward realizing bipartisan principles of equality and family values.