It sure beats a "Fuck you! You don't get it!! You'll never understand!!!" which is the quality of argument I have been getting on this board over this matter. I find it an important societal topic, and I just don't get the "If you're not in the club, STFU" quality of arguments. They don't advance the ball down the field. Your discussion, OTOH, is a breath of fresh air, simply because you postulate your thesis reasonably.
I do have to challenge some of your arguments, though--I suppose it's more of a difference of perspective, than anything else. It's like Massachusetts, when they finally came to the abolitionist viewpoint, saying "Well, we don't want to buck the slavery bandwagon totally, so we'll maintain that 'involuntary indentured servitude' is OK, instead." I don't think that would have appropriately advanced the human rights argument for those still in slavery, or motivated them to seek freedom in the north. It could have changed the entire quality of the abolitionist movement.
Also, for the courts to deny marriage equality in MA, it would have invalidated a very fundamental (I hate using that word nowadays) aspect of the state constitution, and that is that here in MA, we don't "do" the "second class citizen" thing. What's good for the goose is good for the gander, and all that.
Sometimes, you just have to throw down, get into a big scrum, and get knocked around, and then push back. Sometimes, things worth having are worth a hard--and sometimes VERY long-- fight. If Frederick Douglass or MLK could see Barack Obama doing his thing, they might be surprised at how long it took. That wouldn't stop them from being pleased that it finally happened. "Better late than never" is a genuine attitude. Unfortunately, it's butting up against "I want it NOW." And the "NOW" group may well be disappointed, and have to wait, as you noted.
We are STILL waiting for an Equal Rights Amendment in this country--it's only been, what, eighty five or six years? That's certainly a long fought fight, and it's not over yet. Congress still restricts the opportunities of women on account of their gender--and that's just not right, either. I wonder if we'll see a female President so long as women aren't afforded equal opportunity or responsibility under the law of the land.
You'd think some of these states, with their faltering economies, when considering the marriage question, would take note of the $111 million that MA earned as a consequence of opening up the state to out-of-state marriage tourists:
http://repositories.cdlib.org/uclalaw/williams/badgett_24/You'd also think these states would have a look at the social impact of the measure on MA when considering it for their own states--the sky hasn't fallen, the crops haven't failed, it's "all good" and "Big Whoop" as they say. For those that avail themselves of marriage equality in my state, well, good for them! Other than that, it's "So what?"
Also, if you ask around these DU parts, that "What's in a name?" question is taken VERY seriously. "Separate but Equal" isn't regarded as Equal. It's a sticking point that causes a great deal of anger, angst and agita, and the "second best" argument isn't going to fly.
I've always been in favor of a thing called "civil marriage." Not "union," not "partnership," but that big old "M" word. If the people who are religious want to have a religious marriage ceremony, why, they can knock themselves out and go do that, if they'd like. Then, they can run around flapping their hands and telling themselves that their "M" is somehow better than Joe and Fred's, or Mary-n-Sue's "M."
I am concerned with the Boies-TeddyO business, too. I know that they're famous lawyers, and they're supposed to be ethical and so forth, but I can't shake the idea that this is their version of "ALI v. FRAZIER"--a "Thrilla in Manila" type exercise with a purpose that serves more to advance THEIR OWN public profile than aid an Equality cause. I don't necessarily buy the Conspiracy Theory argument that "they're in it to fail" that some are shopping, but that could be the unintended consequences of it.
Also, because of precedent and other issues, they might not get so far. It all depends on whether or not the former Solicitor General of the US has any pull with the docket, I guess. It also could depend on a bit of (shoddy) Supremes precedent.
Like this law prof said over at PHB:
http://www.pamshouseblend.com/diary/11185/olson-and-boies-go-on-media-rounds-to-discuss-the-federal-marriage-lawsuit In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal "for want of a substantial federal question." This is a type of action that the Court uses only infrequently -- even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided -- in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.
This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) .... the Supreme Court has also said, on several occasions and very forcefully, that lower federal courts are not permitted to disregard binding Supreme Court precedent simply because there have been intervening changes in the Court's own cases that undermine the original decision. Rather, the Supreme Court has said that it is the Court's job, not the job of lower federal courts, to say when an earlier Supreme Court precedent has been effectively overruled by subsequent developments.
What does all of this mean for the Olson / Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.
This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it's entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.
Two more quick points. This kind of "dismissal for want of a substantial federal question" is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim -- that the federal government can't discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.
By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 -- if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law -- then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints -- in the end, they do not make the more careful argument but instead just go for broke.
At the end of the day, I guess we'll just have to wait-n-see.
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