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August 23, 2009

My top three questions about the Perry case

Now that Judge Walker has denied the motion of lgbt organizations to intervene in Perry v. Schwarzenegger, I see three major questions looming, in addition to the specific issues of fact and law presented in the case:

What will the ramifications (if any) be of placing control of one of the biggest lgbt rights lawsuits ever filed in the completely private, non-transparent realm of big firms?  All of the lgbt rights groups are, of course, also private in the sense that they are not government agencies. But they are private non-profits with a culture of engagement with the lgbt community and subject to a major degree of disclosure rules about financial statements and governance structures (some required by the IRS). Not so the mega-firms, like Ted Olson's Gibson Dunn and Crutcher (which doesn't even mention the Perry case on its website, at least that I could find). As the case progresses, as questions arise about such things as how the "partially pro bono" attorneys are being compensated, will these differences matter? Or has civil rights litigation become so privatized already, so heavily enacted by big firms, that no one will notice or care?

Will the case be litigated in a way that forces the courts to address the constitutionality of all state law restrictions on same-sex marriage, as the public statements surrounding the case imply?  Or will it be litigated on extremely narrow grounds, i.e. as a challenge to a voter rescission by ballot initiative of a right previously declared fundamental by a state's supreme court, affecting a group previously declared a suspect class also by that state's supreme court, when the material components of the right in question continue to exist (through registered domestic partnership), so that the only state interest being served is the expression of animus implicit in limiting access to the preferred label?  In other words, will the Perry case ultimately be only about California, litigated in a way that its only possible impact will ever be on California?  If the answer is yes, it will be a lot easier to win (although not nearly so important in a strictly legal sense).

Lastly, what will the impact be of Perry on the effort to repeal Prop 8? Emotions are running high and ragged in California about whether to put repeal on the 2010 ballot (a prospect that diminishes in likelihood every day) or whether to wait, presumably until 2012. But how - if at all - will the dynamics change if the trial court rules that Prop 8 is unconstitutional, maybe a year from now, in summer 2010? Or if the Ninth Circuit finds it unconstitutional in 2011?  It takes time and money to put a question on the ballot. Will such rulings energize the repeal effort or the retention effort, or maybe both?  What will be the impact if the federal courts uphold Prop 8, as the California Supreme Court did?

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Comments

I was thinking along the same lines as your second question, Nan, and I've been looking around for answers. Thanks for at least showing that I'm not the only one who's a bit confused!

I don't think that there will be much worry about the ultra-private, ultimately unaccountable way this case will be litigated, at least from the more established sectors and bigger voices in LGBT media. The initial reaction from people with big microphones in the community was along the lines of "Yay! Straight people are taking over!" Larry Kramer told the LGBT orgs to butt out in a statement because he said they'd just screw it up.

But, if they fail, then people will get mad about how it was litigated. Oh, well.

As far as I'm concerned, the advantages of havng lawyers this good, this sensible (see the Smelt example for why this is important), and this familiar with the Court is so valuable I don't care who is paying them. I don't know if they'll win the case in the final decision, but I don't know two lawyers more likely to. (And let's be honest. The fact that Olsen -- and probsably Boies -- knows some of the judges personally will be an advantage, if only because they will see any signs of the judges 'going off the rails' and may be able to pull them back.)

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