A rant, and an explanation.
People keep sending me invites to this facebook group, a popular (I would go so far as to say trendy) place for college students to declare their support of LGBT marriage rights.
I keep rejecting the invitations to join. While I haven't actually done so on facebook yet (though I may eventually turn this post into a note), I would like to explain why. Here's a hint: it does not have anything to do with my lack of support for gay rights.
I will say from the outset that I do not know Ted Olson or David Boies personally. They are, however, superstars in the legal world, and I know them by reputation. Here are some things they are:
- Brilliant lawyers
- Very famous
- Men who make several million dollars per year
- Very ambitious
- Men who would like to make several million dollars more per year
- Men in a profession where taking high profile cases, even if you lose, is likely to result in you making several million dollars more per year
Here are some things they are not:
- Gay rights activists
Okay, let me make something very clear: bringing an equal protection claim against gay marriage bans to the Supreme Court given the Court's current composition is almost certain to fail.
This is true for a number of reasons, most of which involve complicated points of Constitutional Law, but the short version is that the Court has never held that LGBT people are a protected class, and are much less likely to do so if the issue is marriage (a hugely charged political landmine) than if the issue is, say, just the right to have sex, something that most people are pretty much okay with. It also has to do with the fact that most of the liberals on the Court have come to realize that if Roe v. Wade had never happened, abortion rights in the U.S. would almost certainly be much more secure than they are now. (Sandra Day O'Connor, for instance, has practically said outright that if she knew then what she knows now, she would never have decided the way she did.) This is a complicated legal and historical question, but there is very, very good evidence to suggest that it is true. There are massive social costs to the Court deciding a politically charged issue too early and cutting off legislative debate.
If you do not believe me, ask the lawyers for the ACLU and Lambda Legal, who have been working in the courts for marriage equality for years now, and who, unlike Olson and Boies, ARE gay rights activists and come from a much more considered position. (As opposed to a position that seems to have an awful lot to do with making buckets of money.) These organizations have been speaking out against Olsen and Boies's suit from the get-go, because they recognize the catastrophic damage that a Supreme Court ruling against marriage equality would do to the movement.
Let me make something else quite clear: bringing this case to the Supreme Court in 10 or 20 years is almost certain to succeed. Unfortunately, it will be substantially less likely to do so if there is earlier Supreme Court precedent against gay marriage. This is true for two reasons:
1) The Court holds firmly to stare decisis. Rulings like Lawrence v. Texas, where the Court overrules something it said only 15 years earlier, do not happen very often, and it takes a lot to make the Court do so.
2) The Court is much more likely (perhaps more accurate to say infinitely more likely) to rule in favor of gay marriage in 10 or 20 years if a majority of states have already legalized it. A Supreme Court ruling now saying that gay marriage bans are not an equal protection violation is very likely to cause some states who otherwise might have legalized gay marriage to refrain from doing so. This will mean that, by the time the issue comes around again in 10 or 20 years, fewer states will have legalized gay marriage, making it less likely that the Court will perceive a national consensus and rule in favor of it.
I don't know if Olson and Boies are really just in it for the money and prestige, or if they actually mean well. Given the obviousness of everything I've just said to anyone with about a year of legal education, I find it hard to believe that they just mean well, but, as I said, I don't know them. But I am not going to join a facebook group in support of a ridiculously stupid legal move that is likely to do this much harm to marriage equality.
I keep rejecting the invitations to join. While I haven't actually done so on facebook yet (though I may eventually turn this post into a note), I would like to explain why. Here's a hint: it does not have anything to do with my lack of support for gay rights.
I will say from the outset that I do not know Ted Olson or David Boies personally. They are, however, superstars in the legal world, and I know them by reputation. Here are some things they are:
- Brilliant lawyers
- Very famous
- Men who make several million dollars per year
- Very ambitious
- Men who would like to make several million dollars more per year
- Men in a profession where taking high profile cases, even if you lose, is likely to result in you making several million dollars more per year
Here are some things they are not:
- Gay rights activists
Okay, let me make something very clear: bringing an equal protection claim against gay marriage bans to the Supreme Court given the Court's current composition is almost certain to fail.
This is true for a number of reasons, most of which involve complicated points of Constitutional Law, but the short version is that the Court has never held that LGBT people are a protected class, and are much less likely to do so if the issue is marriage (a hugely charged political landmine) than if the issue is, say, just the right to have sex, something that most people are pretty much okay with. It also has to do with the fact that most of the liberals on the Court have come to realize that if Roe v. Wade had never happened, abortion rights in the U.S. would almost certainly be much more secure than they are now. (Sandra Day O'Connor, for instance, has practically said outright that if she knew then what she knows now, she would never have decided the way she did.) This is a complicated legal and historical question, but there is very, very good evidence to suggest that it is true. There are massive social costs to the Court deciding a politically charged issue too early and cutting off legislative debate.
If you do not believe me, ask the lawyers for the ACLU and Lambda Legal, who have been working in the courts for marriage equality for years now, and who, unlike Olson and Boies, ARE gay rights activists and come from a much more considered position. (As opposed to a position that seems to have an awful lot to do with making buckets of money.) These organizations have been speaking out against Olsen and Boies's suit from the get-go, because they recognize the catastrophic damage that a Supreme Court ruling against marriage equality would do to the movement.
Let me make something else quite clear: bringing this case to the Supreme Court in 10 or 20 years is almost certain to succeed. Unfortunately, it will be substantially less likely to do so if there is earlier Supreme Court precedent against gay marriage. This is true for two reasons:
1) The Court holds firmly to stare decisis. Rulings like Lawrence v. Texas, where the Court overrules something it said only 15 years earlier, do not happen very often, and it takes a lot to make the Court do so.
2) The Court is much more likely (perhaps more accurate to say infinitely more likely) to rule in favor of gay marriage in 10 or 20 years if a majority of states have already legalized it. A Supreme Court ruling now saying that gay marriage bans are not an equal protection violation is very likely to cause some states who otherwise might have legalized gay marriage to refrain from doing so. This will mean that, by the time the issue comes around again in 10 or 20 years, fewer states will have legalized gay marriage, making it less likely that the Court will perceive a national consensus and rule in favor of it.
I don't know if Olson and Boies are really just in it for the money and prestige, or if they actually mean well. Given the obviousness of everything I've just said to anyone with about a year of legal education, I find it hard to believe that they just mean well, but, as I said, I don't know them. But I am not going to join a facebook group in support of a ridiculously stupid legal move that is likely to do this much harm to marriage equality.