We are winning the right to marriage in a bigger, deeper way by winning it in the court of public opinion. —Jonathan Rauch
PARK CITY - Advocates of same-sex marriage came to the Sundance Film Festival Saturday afternoon in support of the estimated 1,300 gay and lesbian couples married in Utah, and to fete a film that promotes their cause.
In one of the many receptions on the crowded main street of this city swamped by the Sundance Film Festival, these supporters found a welcome audience advocating one perspective of a hotly contested national issue. In the same-sex marriage debate, culture, law and democracy are each having their impact.
At Saturday's gathering, billed as a wedding reception for those gay couples newly married and sponsored by HBO and by the Human Rights Campaign, a group which advocates for lesbians, gays, bisexuals and transgendered individuals, the message was: same-sex marriage is a fundamental right.
"This is what we are about as Americans,” said Ted Olson, the solicitor general under George W. Bush, one of the legal team to challenge California’s Proposition 8 in court. He spoke on the stage with co-counsel David Boies, also part of the team to challenge the California law.
“We have the same aspirations, the same fears, the same right to be treated decently and with respect in our neighborhoods and our jobs,” he said, to sustained applause from more than a hundred individuals in the packed bistro.
Hollywood may be contributing to a change in national attitudes toward gays, lesbians and marriage. Yet according to other national legal experts not present here at Sundance, neither law nor democracy currently favor the same-sex marriage cause.
"States have always had the primary role on families and on matters concerning husbands and wives," said Ed Meese, the Attorney General under Ronald Reagan, in a telephone interview. "In no way do I think Proposition 8 violates the Constitution."
Currently, 17 states and the District of Columbia allow same-sex marriage. The other 33 states support a definition of marriage as between a man and woman. Each of those 33 states, including Utah, made those decisions through a democratic process of law or a constitutional amendment.
For the advocates of gay marriage here at Sundance, there's only one way though this barrier: a decision by the U.S. Supreme Court overturning democratic decision in the name of one understanding of human rights.
That was the message at a reception celebrating Saturday’s premiere here of “The Case Against 8,” a documentary about California’s 2008 referendum declaring that marriage shall be between a man and a woman.
The law, an amendment to the California Constitution, immediately became a lightning rod for controversy, including protests targeted against the Church of Jesus Christ of Latter-day Saints. Many Mormons, and others of faith, contributed funds and knocked doors in an effort to pass the measure.
Chad Griffin, president of the Human Rights Campaign, took delight in being able to hold Saturday's celebration in Utah, noting "the fact that the Proposition 8 case was brought to us Californians by an institution right here in the state of Utah,” he said. “And we celebrate a federal court victory right here in Utah, and we celebrate the more than 1,300 couples that were able to get married before the stay was put in place.
Likewise, in 2010, another Sundance film, "8: The Mormon Proposition," highlighted these efforts by Latter-day Saints and harshly criticized the law and its passage.
Now, "The Case Against 8" picks up where the prior film left off. This new saga, scheduled for national release on HBO in June, traces the legal saga to overturn California's Proposition 8.
Prominently featured in the film are the two couples that challenged the law in California, their high-profile lawyers Olson and the liberal Boies. The attorneys took opposite sides before the Supreme Court on the Bush v. Gore lawsuit over the results of the 2000 election. After Olson's client won, Bush named him solicitor general, responsible for defending the government's position before the high court.
"The Case Against 8" culminates in California weddings by Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo, after last June's decision by the U.S. Supreme Court decision, Hollingsworth v.Perry.
Yet, ironically, the Supreme Court never ruled for the California couples. Because the governor and attorney general of California refused to defend their state's law, the defenders of Proposition 8 lacked standing in the eyes of the law.
Instead, in a separate case last June, the high court invalidated a congressional law denying federal benefits to same-sex marriages authorized under New York's state law.
The combination of the two decisions means that the Supreme Court has interpreted the Constitution to permit but not to require states to authorize same-gender marriages.
The Sundance crowd was extensive and jubilant in its praise of the 1,300 Utah marriages, issued after U.S. District Court Judge Robert J. Shelby stuck down the provisions of Utah's Constitution that declare marriage to be between a man and a woman.
The U.S. Supreme Court has since stayed Shelby's ruling, pending further court challenges.
The case, together with a decision this past week by a federal judge in Oklahoma, will raise the constitutional stakes for whatever case eventually makes its way to the high court. Such a case could well be Utah's defense of its Amendment 3, the 2004 voter-approved amendment which defined marriage traditionally, and which passed 66-34 percent.
And it is on these grounds that many conservatives are upset with Ted Olson. Through his high-profile association with the Federalist Society, a group of attorneys defending a clearly articulated role for the judiciary, he helped articulate the philosophy of "strict constructionalism" of the Constitution.
They say Olson, of all people, should understand the dangers of the high court treading into decision-making on subjects like marriage, which is not mentioned in the Constitution.
"What Ted Olson did was despicable on several counts," said John Eastman, law professor at the Chapman School of Law in Southern California. He's also Chairman of the Federalism and Separation of Powers Practice Group of the Federalist Society.
"His whole career was arguing against an activist judiciary making up rights," Eastman said in an interview. "His whole career was against a federal takeover of state sovereignty. His whole career was spent limiting the effect of 14th Amendment."
While many conservatives regard the 14th Amendment as appropriately granting civil rights to victims of racial discrimination, they see the high court as having excessively broadening it through cases, like the 1972 Roe v. Wade, guaranteeing a right to abortion.
"All three of those things he threw under the bus to further the homosexual marriage argument," said Eastman. Olson "went against every single major principle he had been fighting for through the Federalist Society in his career."
Many of these Federalists say that the effort to constitutionally require gay marriage short-circuits the democratic debate about whether states should adopt such a public policy, and how such statutes will impact other family and domestic laws.
"Since the early 1960s, the liberal movement has attempted to use the court toward victory for their causes when they have been unable to win them in forums of democracy," said Robert George, a professor of jurisprudence at Princeton University.
He called this strategy an effort to play up "the dogmas of the sexual revolution," such as Roe v. Wade.
"What is most fundamentally wrong with these decisions is not that they produce bad policies, though they do, but that they represent the judicial usurpation of the authority vested by the Constitution in the people and their elected representatives," said George.
George calls this "anti-usurpation philosophy" and says it is "the whole point" of the Federalist Society. "If that is what Olson once represented, he can't claim to represent it now."
The concern about judicial activism isn't limited to conservatives. It's one reason some same-sex marriage advocates are cautious about a sweeping ruling imposing it nation-wide. Jonathan Rauch, the author of the book "Gay Marriage," and a proponent of the practice, said, "People forget that durable rights don’t come from courts, they come from consensus and strong support from society."
“We are winning the right to marriage in a bigger, deeper way by winning it in the court of public opinion," Rauch said.
The comparison with Roe v. Wade is illustrative. That decision polarized American society and sparked a strong counter-reaction. Critics were concerned both about its impact on unborn lives, and upon the health of the Constitution, when judges felt free to declare a fundamental right based on no supporting textual language.
Since then, the high court has been mired with re-drawing lines on everything from the health of a mother to the distance at which abortion clinics must keep protestors, as in a case before the court last week.
In a speech last May to students at the University of Chicago, Justice Ruth Bader Ginsburg said, "the court had given opponents of access to abortion a target to aim at relentlessly . My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change.”
At the same time, the high court sometimes steps in to force unanimity on a matter that seems to be coalescing into a national consensus. This is one view of Loving v. Virginia, in 1967 the high court voided Virginia's anti-miscegenation law, declaring a constitutional right for men and women of different races to marry.
Back to Sundance
At the Sundance reception, as Olson and Boies basked in the praise from the many same-sex marriage advocates, they each praised the other for the opportunity to work together on the case challenging Proposition 8.
“There isn’t a better lawyer in the country, and I don’t have a better friend,” Boies said of Olson, as he simultaneously slammed the other side of his case. “The other side doesn't have an argument, they have a circular bumper sticker that says, 'marriage is between a man and a woman.'”
And, he lauded the individuals, including the plaintiffs, for their courage in mustering the legal fight. Wrapping up his brief remarks in this city that played host to many of the events in the 2002 Salt Lake Winter Olympic games, Boies compared his and Olson’s role to that of torchbearers.
“We got the torch just as we were going into the stadium,” he said to applause, followed by: “The best thing we can say is, ‘at least we didn’t drop it.’”
Drew Clark is Senor Contributing Editor at the Deseret News.