Forum examines value of a federal challenge to California ban on same-sex marriage

On April 21, the NYU Law Forum, with the cosponsorship of the Dean’s Workshop Series on LGBT Rights, discussed the federal challenge to Proposition 8 and whether it would serve the needs of the lesbian, gay, bisexual and transsexual community. Panelist David Boies (LL.M. '67), chairman of Boies, Schiller & Flexner, explained why he decided to challenge the constitutionality of the California ban on same-sex marriage. Matt Coles, deputy legal director of the American Civil Liberties Union, and Adjunct Professor Paula Ettelbrick discussed whether same-sex marriage should be a priority. Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, moderated the debate.

Just after the California Supreme Court upheld Proposition 8 in May 2009, former U.S. Solicitor General Ted Olson, a Republican, and Boies, a Democrat, together filed a constitutional challenge in the U.S. District Court for the Northern District of California. Boies and Olson, who argued on opposite sides of Bush v. Gore, may well bring the case to the Supreme Court.

“The Court has to get out in front of public opinion or there’s no point in having a court, but it can’t get too far out,” Boies told the packed NYU hall. He cited Loving v. Virginia, the then-unpopular landmark 1967 case ending bans on interracial marriage. A decision on Proposition 8 could rest on grounds specific to California, he argued, allowing the Court to take one step towards a “general principle.” The justices would also not be required to “find a new right,” as the Court had already established a “fundamental right to marry” in cases striking down state laws banning marriage to certain groups, such as prisoners. Olson, he said, will argue on “libertarian” grounds, that the choice of a spouse should not be subjected to governmental interference.

Ettelbrick, known to advocate domestic partnership statutes and benefits for same-sex couples rather than marriage, elicited smiles when she said, “Marriage stinks.” But her position has evolved. As Americans redefine family, she described a future in which marriage, including same-sex marriage, would be one among many relationships entitled to benefits and rights. Noting that the “right-wing” has made “gay marriage heart and center” in the same way that abortion became the hot-button of feminism, she said, “We’re in a struggle again to defend choice.”

Boies, responding that his case was not “about whether marriage is a good idea but about whether the state can discriminate,” also argued that ending same-sex marriage bans would help reduce other forms of discrimination. Coles noted that all discrimination is based on the view that a group is inferior in specific ways. Marriage equality, he said, would address the core prejudice behind discrimination, that non-heterosexuals are “emotionally shallow and incapable of forming relationships.”

When it came to legal strategy, both Boies and Coles said that they did not think it was likely the suit could lead to a damaging opinion and Coles noted that he expects Connecticut to stand by its decision for same-sex marriage even if the Supreme Court upheld Proposition 8.

At the end of the panel, Boies, who serves as a Trustee at NYU Law, said, “I have great respect for Kenji and I knew it would be a good panel.”

Video

Watch the full discussion (1 hr 21 min):

Posted April 26, 2010