Time Magazine profiles the Perry case

01/05/10 Time Magazine:

Law professor Andrew Koppelman tells Time that he as "trouble" identifying a U.S. Supreme Court majority that would be in favor of the Perry plaintiffs, and law professor Samuel Marcosson warns that "the plaintiffs are (unfortunately) very likely to lose — at least if the case makes it all the way to the Supreme Court — and set a precedent that didn't need to be, and shouldn't have been, set. The case was premature and ill-advised." In an e-mail to Time, plaintiffs' counsel Theodore Olson had this to say about objections of the kind Koppelman and Marcosson (among others) raise:

We consulted and researched in depth. We concluded that we had/have a reasonable chance of success. Our clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event — without the resources or experience that we can assemble. The State Attorney General has now conceded the unconstitutionality of Prop 8. Finally, no one urging us not to proceed could or would say when would be a good time to bring this case ... On more than one occasion I've been told that I had no chance to win a case. While one doesn't ignore these scholarly prognostications, I've found that they can often be wrong.

Jennifer Pizer, director of the National Marriage Project for Lambda Legal, said that her organization is helping the Olson-Boies team prepare for trial, despite initially opposing the lawsuit as too risky. She discusses broader questions that the litigation may begin to answer:

Many people might be surprised to know that key issues about the legal status of gay people remain undecided in federal law. Do all people have the same right to marry regardless of sexual orientation? ... Should sexual-orientation discrimination be considered a form of sex or gender discrimination? Judge Walker may decide some or all of these questions, and the Ninth Circuit may decide them differently. Whatever happens is likely to have great significance.

Debate continues over timing of Perry v. Schwarzenneger

These articles concern Judge Vaugn Walker's denial of a summary judgment motion in Perry v. Schwarzenneger.

At the October 14th hearing to review the motion, Judge Walker asked Charles Cooper, attorney for the official Prop. 8 proponents, how gay marriage would harm married heterosexuals. Cooper conceded that he could identify no harm, a concession that appears to support the plaintiffs' constitutional challenge. Walker also gave Cooper a counterexample to proponents' claim that procreation provides an important reason why the state limit marriages to heterosexuals: Walker had recently married an elderly couple. Cooper acknowledge that Walker was not "missing something" about the "procreation" claim.

Nevertheless, the tea leaves do not auger well for plaintiffs and gay and lesbian couples who hope that the Perry case will overturn state bans on same-sex marriage. Debate continues over whether the case was appropriately timed, given the unlikelihood of a 5-4 decision by the U.S. Supreme Court to overturn these bans.

10/25/09 The Desert Sun:

“We do think it's early to be doing federal litigation, but we do not disagree with the legal theory,” said Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal in Los Angeles. “There are different views about the timing of the suit.”

10/26/09 NY Times:
Andrew Koppelman, a law professor at Northwestern and the author of “Same Sex, Different States: When Same-Sex Marriages Cross State Lines,” said [plaintiffs' attorney Theodore] Olson will have trouble attracting votes from the current justices. Asked how many justices Mr. Olson could count on, Professor Koppelman said, “I have trouble getting to one.”

See also this letter to the Times by Eva Wolfson, executive director of Freedom to Marry.

The surprisingly quick triumph of the same-sex marriage movement

04/10/09 Balkinization Blog:

Northwestern law professor Andy Koppelman observes that "[t]he ame-sex marriage movement must now be acknowledged to be one of the most rapidly successful social movements in the history of the United States, revolutionizing the law in an enormous part of the country in less than ten years ... more than a fifth of the population of the United States lives in a jurisdiction that recognizes same-sex relationships as marriages or their functional equivalent."

Source: ADF Alliance Alert

Does the specter of Roe v. Wade hang over gay marriage and the Supreme Court?

04/12/09 Sexual Orientation and the Law Blog:

"After a week in which the number of states authorizing same-sex marriage doubled," Mayer Brown attorney Steve Sanders, writes, "the New York Times explains why the U.S. Supreme Court isn't likely to take up the issue anytime soon. [Northwestern law professor] Andy Koppelman puts his finger on the main reason why this is so: the groups like Lambda that have brought these cases, fearing what could happen if the federal courts get their hands on the issue right now, bring them entirely based on state constitutional law theories, so there's nothing to invoke the U.S. Supreme Court's jurisdiction."

In fact, Koppelman underscores the legal strategy involved in bringing the challenge to Iowa's DOMA. "The Iowa decision,” he said, "is the product of a very smart legal team researching every state supreme court and every state legislature.” Camilla Taylor, senior staff attorney for Lambda Legal in Chicago and lead counsel on the Iowa case, also explains the rationale for targeting in Iowa. She told the Chicago Tribune ("Gay marriage and Iowa: Why's everyone so surprised?"), "We knew we could count on Iowa's leadership on civil rights issues."

Oddly, none of the law professors interviewed for the NY Times article comments on a recent challenge to the federal Defense of Marriage Act on behalf of eight Massachusetts same-sex couples and three same-sex widows.

The NY Times article also suggests a renewed debate on the critical role of courts in advancing democratic reform of state constitutions:

"Since the Vermont Legislature decided to allow same-sex marriages, legal scholars have been debating whether that political victory could have been secured without the judicial decisions that preceded it. 'Without the activist decisions on same-sex marriage,' [Columbia University law professor Nathan] Persily said, 'there might not have been a fire lit under the legislature that passed it.'"