The Right Litigation at the Wrong Time.

Although I don't actually disagree with the bottom line of Adam Liptak's account of the lawsuit filed by David Boies and Theodore Olson arguing that California's odious Proposition 8 is unconstitutional, the structure of the article is atypically odd. It begins by describing the lawyer defending California's same-sex marriage ban in court pulling a Ross Douthat -- that is, being unwilling to even try to articulate a decent rational and secular reason to stop same-sex couples from marrying. Liptak follows this up by arguing that objections to the lawsuit from advocates for same-sex marriage who preferred a state-by-state strategy of litigation "are waning." Sounds encouraging, right?

I hope readers got to the end of the article, because as (to his credit) Liptak points out the skeptics of this litigation are of course right:

The ultimate destination of Mr. Olson’s suit is the Supreme Court, and it is hardly clear that he will be able to convince five justices to see things his way. Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said Mr. Olson would have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”

It is not obvious that even the more liberal justices will want a piece of this fight.

I'll grant that I very strongly doubt that Justice Stevens, especially with the end of his judicial career imminent, would join an opinion asserting Prop. 8's constitutionality -- he's always been particularly suspicious of arbitrary exclusions from government privileges. But that's the only vote I feel confident about. And ultimately it doesn't matter how many of the Court's liberal members would vote to overturn the ban, because there are five nearly certain votes to uphold. It's true that Kennedy has sometimes been a swing vote on these issues, but this would be very different than half-upholding a popular 20-year-old precedent or voting to strike laws whose impact was relatively trivial (largely unenforced bans on sodomy, rarely used applications of the death penalty). Kennedy has never been ahead of the curve, and there's no reason to believe he'd start here.

I believe that the Boise/Olson lawsuit is right on the merits -- but since I don't sit on the Supreme Court, that doesn't matter. This lawsuit -- if they actually want to advance same-sex marriage rights -- is stupid; its only consequence of a positive lower-court ruling could be to create a Bowers-like bad precedent from a higher court that would hamstring litigation efforts in other states.

--Scott Lemieux