Same-Sex Civil Marriage: Not Quite Ready to Go for Broke

The famous (if unlikely) team of Boies and Olsen are backpedaling on their case to overturn Proposition 8–and establish same-sex civil marriage by national default:

The two high-profile lawyers who started the nation’s most significant lawsuit attempting to gain marriage rights for same-sex couples told the Supreme Court on Friday that it might find it very interesting to take up that issue now, but urged the Justices not to do so in the only case now at the Court that could raise that question — the case testing the constitutionality of California’s “Proposition 8.”   Attorneys Theodore B. Olson and David Boies argued that the case has procedural flaws, made no change in the law, involves no conflict among lower courts, and might raise core constitutional issues that the Court may not be ready to confront.

I’ll try to avoid oversimplification, but there are two major tracks running through our court system on this subject.

The first are all the “DOMA” cases, such as this (HT to Rubin on Tax for keeping up with this).  Basically these seek to overturn the 1996 law, which denies federal recognition for same-sex civil marriages permitted by state law for purposes such as the tax code.  Success in this wouldn’t mandate same-sex civil marriage everywhere, but it would take the campaign to a new level.

The second are cases like this, which seek to mandate same-sex civil marriage based on equal protection under the laws.  Although opponents of same-sex civil marriage hate to admit it, our élite opinion has given an air of inevitability to the success of this venture.

Or has it?  It’s sometimes hard to know why attorneys do what they do, but my guess is that Boies and Olsen are afraid that SCOTUS will issue a muddled, narrow opinion which would overturn Proposition 8 in California but which might in the long run make winning a broader case difficult.  That, more or less, is what happened with the Obamacare case, especially with the Medicaid issue, which is why liberals, while relieved at its basic upholding of the “Affordable Care” act, aren’t dancing in the streets just yet.

I still believe that abolition of civil marriage, with or without civil unions (I would prefer the latter) is the best way to go on this issue, and the one that advocates of “traditional marriage” should have pursued to start with.  Boies and Olsen are in a tight place right at the moment, but one of these days people will see Proposition 8 for the strategic error that it was.

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