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Same-sex marriage fuels debate over path to change

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September 10, 2013 |

By Bob Egelko

When Theodore Olson and David Boies, two prominent corporate lawyers, challenged California’s ban on same-sex marriage in federal court more than four years ago, many gay-rights advocates thought it was the wrong case in the wrong court, at the wrong time, and could set the movement back seriously.

Today, because of that lawsuit and its impossible-to-foresee odyssey through the nation’s judicial system, gays and lesbians can marry in the nation’s most populous state.

There’s still a difference of opinion on whether the outcome was worth the risk. But the case has added to the debate about whether and when social change — gay rights, access to abortion, desegregation — should be sought through the courts or the political process.

“There really never is a bad time to pursue justice,” said Boies, the liberal attorney who teamed with the conservative Olson, his former adversary in the Bush vs. Gore presidential election case in 2000, to challenge California’s Proposition 8 on behalf of two same-sex couples in May 2009. “You may lose, but losses are the foundation for greater victories.”

But sometimes the courts aren’t ready for a challenge to the status quo, said Michael Wald, a Stanford emeritus law professor who supports same-sex marriage but feared that a federal suit could lead to a devastating defeat in the conservative U.S. Supreme Court.

Flurry of anti-gay laws
He recalled Bowers vs. Hardwick, the 1986 case in which the court’s conservative majority said states could prohibit private acts of gay sex. Lower courts relied on that ruling to uphold numerous antigay laws before the high court overruled Bowers 17 years later.

“I think people were justified in having reservations (about the Proposition 8 suit). The chance of a loss was really too great … even though things turned out fine,” said Wald, who, despite his own reservations, wound up contributing to written arguments supporting the federal lawsuit.

There’s also a chance that a win in court could backfire by pre-empting the slower, but more publicly accepted, process of social change through political action. That, says Supreme Court Justice Ruth Bader Ginsburg, is what happened when the court declared a constitutional right to abortion in the 1973 Roe vs. Wade decision.

“The unelected judges decided this question for the country, and never mind that the issue was in flux in the state legislatures,” Ginsburg, appointed to the court in 1993, told the New York Times in a recent interview. She supports legal abortion but says the 1973 ruling triggered a backlash that continues to this day with restrictive laws enacted in a growing number of states.

That view is also subject to debate. Abortion-rights groups say Roe vs. Wade won strong public support at the time and that abortion would still be illegal in much of the nation if the court had not ruled as it did.

The battle lines over abortion appear to be more rigid than those over minority-rights issues like same-sex marriage and school desegregation, said Vikram Amar, a constitutional law professor at UC Davis. Public acceptance of racial and sexual minorities tends to increase over time, eroding resistance to once-controversial court rulings, he said, while attitudes toward abortion have changed little in 40 years.

Prop. 8 strategy
Prop. 8, passed in November 2008, was initially challenged by the same gay-rights groups that had persuaded the California Supreme Court to overturn the state’s former ban on same-sex marriage six months earlier. But they deliberately chose not to argue that the ballot measure violated the U.S. Constitution, an argument that could have moved their case to federal court and ultimately to the U.S. Supreme Court.

“It was too early to be taking the marriage issue into federal court,” said Jenny Pizer, senior counsel at the gay-rights nonprofit Lambda Legal. After the California court upheld Prop. 8 on state-law grounds, she said, it was time to refocus on state-by-state actions, including a future California ballot measure.

But Olson and Boies had already sued in federal court, arguing that the 2008 initiative violated constitutional rights of equal protection and due process.

Hardly anyone could have predicted the events that followed: the random assignment of the case to Chief U.S. District Judge Vaughn Walker, who ordered it to trial, then ruled that gays and lesbians had a constitutional right to marry; the refusal of Gov. Jerry Brown and Attorney General Kamala Harris to defend Prop. 8, leading to intervention by the measure’s private sponsors; and, ultimately, a 5-4 Supreme Court decision in June that sidestepped the constitutional issue and found instead that the sponsors lacked legal standing to appeal Walker’s ruling.

Questions remain
A final, unsuccessful plea by Prop. 8’s supporters to the state Supreme Court has left Walker’s ruling in effect statewide. But that hasn’t ended the debate about the lawsuit.

“Prop. 8 didn’t die because the (Supreme) Court embraced the challenge, but because the governor and attorney general wouldn’t support it,” Amar said. “Who knows which way it would have come out,” he said, if the court had ruled on a state’s constitutional authority to define the right to marry.

Boies countered that uncertainty about the outcome can’t justify putting people’s rights on hold.

“When you don’t challenge something like (Prop. 8) you are feeding a bias that says the status quo is right,” Boies said.

Kate Kendell, executive director of the National Center for Lesbian Rights in San Francisco, said she had qualms about going to federal court but wound up supporting the Olson-Boies lawsuit, largely because of the stature of the two lawyers. For some causes, she said, risk-taking is inevitable.

“If you wait for the moment when you’re assured of victory, then you’ve waited too long,” Kendell said.

— Reach Bob Egelko at begelko@sfchronicle.com

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