Yoshino discusses timing of federal lawsuit challenging California's gay marriage ban in New York Times Room for Debate

Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, is among four legal experts featured in the New York Times Room for Debate discussing the timing of the federal lawsuit brought by Theodore Olson and David Boies (LL.M. '67) challenging California’s Proposition 8, which prohibits same-sex marriage. Also sharing their views are Eugene Volokh, Gary T. Schwartz Professor of Law at the University of California, Los Angeles School of Law; Amy Wax, Robert Mundheim Professor of Law at the University of Pennsylvania Law School; and Evan Wolfson, executive director of Freedom to Marry.

Yoshino draws an analogy to the little-known case of Naim v. Naim, a challenge to Virginia’s ban on interracial marriage. In 1956, the Supreme Court avoided ruling in that case by deeming marriage too socially contentious an issue. The ban was later lifted in the 1967 landmark case Loving v. Virginia. In making a decision, Yoshino writes that if "the Court believes that a broader social consensus needs to develop, it should remember how it bought time with Naim.”

The issue has splintered both sides of the larger same-sex marriage conversation. “The analogy is important because many gay-rights organizations have criticized Mr. Olson and Mr. Boies, who are not gay-rights litigators, as rogue lawyers who brought the case too soon,” Yoshino writes. According to Yoshino, though, the lawyers are not the only ones deciding when this case is heard—discretionary review allows the Court to choose which appeals it will hear first.

"But in this litigious age, it was only a matter of time before someone made a federal case out of same-sex marriage. And if I were to choose two private lawyers to go 'rogue,' I would pick these two."

Volokh deems it unlikely that five justices would support Olson's and Boies's claim. "Some justices—probably at least four and maybe five—probably think the opposite-sex-only marriage rules are clearly constitutional, because nothing in the constitutional text or our nation's traditions prohibits such rules," he argues. "And even some of the justices who might be open to a different view are unlikely to want to invalidate the laws of more than 40 states."

If the goal is to at least keep the issue in the public eye and to continue to add support from voters and legislators, Volokh warns of a backfire as "more people will be alienated by the attempt to use judges to reverse the nationwide popular will than will be persuaded by the public airing of the arguments. In a few decades, things might be different. But today, I doubt the lawsuit does much to advance gay rights."

Wax breaks down the argument to the facts: "As far as I am aware, no lower federal court of appeals has held that the federal Constitution mandates the recognition of same-sex marriage and few state courts have even considered this question." She notes that the "Supreme Court generally refrains from deciding federal constitutional questions until federal courts of appeals and/or the highest courts of the states have thoroughly reviewed the constitutional issue and have come to differing conclusions," meaning a Supreme Court decision is not warranted as no other court has ruled on California's ban.

Wolfson argues that the best way to win this case at the Supreme Court is to create a "climate that enables justices to do the right thing." The road to overturning the ban has to start long before the case is actually heard by the court, by winning the right to same-sex marriage in more states, and in the process, "winning over more hearts and minds," Wolfson writes.

"The opportunity to use the time between now and the day it’s turned over to the justices is very much in our control," Wolfson adds. "Since that day may come soon, let's start talking now to the people we need to persuade, and make the timing right."

Posted on August 19, 2009