May 27, 2009

Olson-Boies Case Gives Civil Rights for Gays Hope

Updae II: Bush v. Gore Foes Join to Fight Gay Marriage Ban (NYT) - Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. 'We studied this very, very carefully.'

Update: Civil rights groups say Make Change, Not Lawsuits, explicitly discouraging a federal legal challenge. "The arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," reads the question and answer online sheet.

This is a defensive, crouching strategy that argues before demanding civil rights for everyone, make sure its okay with the bigots first. Put another way, "This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism," as MLK reminded us on one very special day.
The news that Bush v. Gore attorneys Theodore B. Olson and and David Boies are seeking an injunction against California's same-sex marriage ban could be the first step in the U.S. Supreme Court guaranteeing gay Americans equal protection, due process and privacy rights.

Their case, Perry, Stier, Katami and Zarrillo v. Schwarzenegger, could result in gays ultimately being permitted liberty to marry just like any other Americans as the U.S. Supreme Court may offer a liberty-friendly venue, contrary to a LA Times report.

Six years ago, the landmark due process decision Lawrence v. Texas (2003) [overturning the infamous Bowers v. Hardwick (1986)] was decided by a six-to-three majority.

Five pro-due process (and roughly speaking pro-liberty and pro-privacy) justices will likely sit on the Court [the pro-liberty Souter being replaced by the pro-liberty Sotomoyer] if the Olson-Boies case works its way to consideration by the Court. The wildcard Justice Anthony Kennedy wrote the Lawrence v. Texas (2003) decision.

Kennedy delivered the opinion of the Court in Lawrence v. Texas (2003) in which justices Stevens, Souter, Ginsburg, Breyer and O’Connor concurred in the judgment.

Justice Antonin Scalia filed a dissenting opinion in which Rehnquist and Thomas joined.

A near-future U.S. Supreme Court could offer a five-four decision overturning state and federal bans on gays marrying.

As Justice Kennedy writes in the Lawrence v. Texas opinion: "Far from possessing 'ancient roots,' American laws targeting same-sex couples did not develop until the last third of the 20th century."

Reading the Perry, Stier, Katami and Zarrillo v. Schwarzenegger brief, it's not difficult to speculate on a comprehensive decision in which gay marriage bans are overturned in the near future.

Near-Future U.S. Supreme Court Justices and Lawrence v. Texas

John Paul Stevens: Pro due process in Lawrence v. Texas (2003)
Ruth Ginsburg: Pro due process in Lawrence v. Texas (2003)
Anthony Kennedy: Pro due process in Lawrence v. Texas (2003)
Stephen Breyer: Pro due process in Lawrence v. Texas (2003)
David Souter: Pro due process in Lawrence v. Texas (2003) [Souter will likely be succeeded by a pro-due process Sonia Sotomayor]

Antonin Scalia: Against due process in Lawrence v. Texas (2003)
Clarence Thomas: Against due process in Lawrence v. Texas (2003)
Samuel Alito: Against liberty claims generally [succeeded pro-due process O'Conner]
John Roberts: Against liberty claims generally [succeeded against-due process Rehnquist]

via mal contends

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