Learning from Gay Marriage

One lesson of the breathtaking victory for the gay-rights movement in the Proposition 8 case is simple, if not immediately obvious: if you want to win something, you have to fight for it.

This was a controversial case, right from the start, and not just among opponents of same-sex marriage. As Margaret Talbot described in The New Yorker, many people in the gay-rights movement were worried that the case would fail and make bad law; others resented David Boies and Ted Olson, the superstar lawyers behind the case, for parachuting into a cause with which they had not previously been associated. But these worries, understandable though they might have been, proved unjustified.

Instead, the Ninth Circuit has now given Boies and Olson everything they wanted—and, importantly, no more than they wanted. The majority opinion holds that Proposition 8, which voters passed in 2008 to invalidate a California Supreme Court decision sanctioning same-sex marriage in the state, violates the United States Constitution. The decision, written by Judge Stephen Reinhardt, is an artful piece of work. Reinhardt is known as one of the most liberal appeals court judges in the country, but he crafted a narrow ruling, one that is unlikely to draw the attention of the Supreme Court of the United States.

Reinhardt tethered his ruling to the unique facts of the Prop. 8 case. He did not rule, as he was surely tempted to do, that there is a constitutional right to same-sex marriage, enforceable in every state in the union. Rather, the judge grounded his opinion in the “one effect” of Prop. 8:

[I]t stripped same-sex couples of the ability they previously possessed to obtain from the State, or an other authorized party, an important right—the right to obtain and use the designation of “marriage” to describe their relationships.

This withdrawal of the right to marry has occurred in no state other than California; as Reinhardt surely knew, the Supreme Court’s Justices are unlikely to review a case that has no broader application.

The aggressive approach favored by Boies and Olson contrasts with the more cautious routes that the liberal legal community, and, even more, liberal politicians, have taken in recent years. Consider, for example, the words of a former law professor named Barack Obama, who wrote in “The Audacity of Hope” about his reluctance to enter the political brawl over President Bush’s judicial nominees: “I wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy.”

Many agreed with him. It was said that pushing for abortion rights in the courts, which led to the landmark Roe v. Wade decision in 1973, short-circuited the political process and served only to create and energize the pro-life movement. Legal theories advocating new constitutional rights—like, say, a right to an education, or housing, or even a living wage—began to look ridiculous, and were abandoned.

Of course, decades of judicial appointments by Republican Presidents had a great deal to do with this reticence on the part of legal liberals. Years of defeats bred an understandable degree of caution. Many of those who defend abortion rights, or affirmative action, have spent decades of their careers on patched-together holding actions to preserve gains that have come under assault.

But the gay-rights movement has something to teach its colleagues on the left. In the heyday of the civil-rights era, when the Warren Court was a friend to liberals everywhere, the cause of equal legal rights for gay people scarcely even existed. Gay rights started from scratch at a time when the courts were, as a rule, implacably hostile to the cause of expanding definitions of civil rights. The degree of its triumph is extraordinary. Ten years ago, same-sex marriage did not exist in the United States; soon, assuming the California decision holds and a bill now pending in Washington’s state legislature passes, close to a quarter of the American people will live in a state that permits same-sex marriage. Compared to the fight for racial equality, that is change at the speed of lightning.

To some extent, Boies and Olson got lucky; they drew sympathetic judges at both the trial and appellate level. Their case could still fall apart in the course of further appeals. But today they look like they took a chance and seized the moment—which is an important lesson in itself.

Photograph by Justin Sullivan/Getty Images.