Having been solidly rebuffed at the ballot box, turned back by a repentant California Supreme Court and then frustrated by a series of statewide special elections (most of which took place in blue states), the opponents of Proposition 8 have now decided to take their arguably counterproductive political strategy a step further by taking their case to the last refuge of unpopular minorities seeking special privileges – namely, the Federal Court system. This time-honored strategy of appealing to judges, however, is likely to backfire in the worst possible way come its inevitable arrival at the gates of the Supreme Court, resulting not only in a broad rebuke of the gay rights movement behind it, but of the entire school of thought which treats any and all claims to “civil rights,” however questionable, as teleologically destined for success. 

There are any number of tactical reasons why taking a fight over gay marriage to the Federal Courts is unwise - most obviously, the fact that emotionally charged rhetoric and loud demonstrations of passion of the kind the gay rights movement specializes in have absolutely no bearing on the Law – but in spite of these, the movement has dug its heels in and made a number of legal arguments which are, on the surface, persuasive. For instance, they contend that Proposition 8 “violated the constitutional separation of powers by stripping the courts of their authority to protect a minority group from discrimination,” that it was a revision of the State Constitution rather than a simple amendment, which invalidates the election process used to validate it, and that it eliminated “inalienable rights” protected by the California State Constitution’s first sections. Each of these arguments are well-rehearsed pieces of liberal jurisprudence, and certainly could hold currency with certain members of the legal community, especially in California’s left-leaning appeals court system. 

However, with respect to actual precedent and current Supreme Court politics, all three of these claims are dead on arrival. And more disconcertingly still, the seeds of this death are to be found in precisely the cases most oft-cited by gay rights proponents as supportive of their position. Take, for instance, Loving v. Virginia, a 1967 case which established the supposed “right” to marry for interracial couples. While Loving does contain language which describes marriage as a “right,” it is worth noting, as Justice Warren did, that, all claims to “rights” notwithstanding, “marriage is a social relation subject to the State's police power,” and that the State’s police power is only constrained by the 14^th amendment. In other words, the legal question of Loving was not whether a new right – the right to marry who one wished – was being created, but whether already-protected constitutional rights (for instance, the right of protection against racial discrimination) were being violated. Moreover, even if one argued that marriage was a “right,” the more important question is whether the Court recognizes said “right” as a “fundamental right,” rather than simply a “right,” for only in the fundamental case does the more restrictive standard of legal strict scrutiny come into play. 

However, no Court has ever explicitly recognized marriage as a fundamental right, given that this would require the invalidation of all statutes barring incest and pedophilia, so this question is simply moot. Rather, Warren wrote of the anti-miscegenation statute in question that “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.” In other words, there was no rational reason why one should assume that racially mixed couples would be incapable of acting as legitimate married couples. This question of rationality, therefore, is the one which holds meaning on the issue of Proposition 8, and as most precedent shows, the “rational basis” test has lost all its teeth since Loving. Finally, unlike Proposition 8, the wording of the statute in Loving explicitly recognized that “marriage” was theoretically possible between consenting adults of different races, but still denied legal protection to it, whereas Proposition 8 explicitly denies that the “marriages” in question are marriages at all, only holding the ones already performed as valid because of the Constitutional prohibition against ex post facto laws. 

Still, the rational basis has occasionally been used to invalidate certain statutes – most infamously in two other cases which gay rights proponents point to. Those two, Romer v. Evans and Lawrence v. Texas, are even more dubious in their bearing. For instance, while Romer dealt with an amendment which the Colorado Supreme Court itself had deemed unconstitutional, and which explicitly stripped homosexuals of existing rights by name, Proposition 8 neither strips homosexuals of any recognizable rights (for it leaves the domestic partnership options in place), nor would it be construed as stripping them alone of those rights, as polygamists, pedophiles, and anyone else whose tastes do not favor adults of the opposite gender would swiftly find any “marriages” they performed with their chosen partner(s) invalidated. Moreover, Justice Kennedy wrote that the amendment in Romer was “a status based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests,” implying that, if the protection of traditional marriage can be described as a “legitimate state interest,” then Proposition 8 can be classified safely as constitutional. 

Which brings us to the final nail in the coffin of the anti-Proposition 8 brigades – Lawrence v. Texas. As Justice Kennedy wrote, Lawrence succeeded only because “It not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Justice O’Connor put the point even more forcefully in her concurrence when she wrote that “Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage…other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group.” Of these two, Kennedy is now the swing vote on the increasingly rightward-tilting Court and O’Connor has been replaced by the yet-more conservative Samuel Alito, who probably would have voted with the dissent in both Romer and Lawrence, thus removing any chance of this case seeing a happy ending in the Federal system.  

Of course, one can always hope that, having exhausted their appeals to countermajoritarian institutions, the forces behind gay rights will finally discover that social change requires more than squashing dissenters under the force of a gavel. But I wouldn’t hold my breath, nor would I expect them to get anywhere because of the broad unpopularity of the issues they support. It seems, therefore, that the only question left for the gay rights movement seems to be how to wait out the backlash.