California Fades, Ninth Circuit Ascending

As the dust settles on last week's CA S Court ruling upholding both 18,000 same sex marriages and Prop 8, the legal LGBT community and allies are uncertain about and feel the Boies/Olson federal lawsuit is premature.

I consulted a former political science professor of mine at UC Santa Barbara, Dr. Gayle Binion. She said that if the strategy is to go to the S Court, she doubts the justices will support gay marriage as a 14th Amendment right unless Sotomayor and two others are confirmed during Obama's time. Otherwise, it will become a precedent that needs to be overturned.

A unified statement of several LGBT organizations also expresses caution about such risky actions:

They say: "Pushing the federal government with multiple lawsuits before we
have a critical mass of states recognizing same-sex relationships or suing in states where the courts aren’t ready is likely to lead to bad rulings. Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer."

In response to this question, 4. Shouldn’t we try to bring a federal case and get it to the U.S. Supreme Court as soon as possible to settle the issue once and for all?, this group is clear.

"No. The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws
requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law."

Dr. Binion added: "The Boies/Olson strategy could be to get a sympathetic judgment from the 9th Circuit, indeed possible if they draw the right judges, then worry about what will happen (i.e. the S. Ct. would then likely take the case.) If the 9th Circuit holds that Prop 8 violates the US Constitution (perhaps both on Equal Protection and substantive Due Process grounds, then it would be the law for all of the 9th Cir. states unless/until the S.Ct. reverses or "stays" the ruling, while it decides whether to grant cert."

I'm not happy that these two presumably straight white men did not seem to collaborate with the leading voices in the movement in taking their actions. It makes me wonder if they are seeking to be the heros themselves or seek the best path to victory with those who have been walking it for a long time.