Equality On Trial

Perry v. Brown: Is it better for the LGBT rights and marriage equality movement if review is granted by the Supreme Court? Why?

June 28, 2012

By Scottie Thomaston

Marriage equality Prop 8 Prop 8 trial

This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!


By Vienna Hagen, aka AnonyGrl

Let me start off with a couple of disclaimers. I am not a lawyer, neither am I a citizen of California. I say that because my opinion is not a legal one, but rather a personal, emotionally driven one.

Let me also say that the wonderful Chris Stoll has the absolute right of it. Chris is completely correct that we have won in this case, and that should be allowed to stand, and Californians should be allowed to marry as soon as possible, they have waited more than long enough. The risks of taking the case to the Supreme Court are unnecessary, and the time frame involved is unbearable.

However… the question, as I read it, is not exactly answered by “what is best for Californians.” The question asks about LGBT rights and the marriage equality movement, which encompasses a much larger group of people, and a much wider cause. And in trying to answer as I see if for the larger cause, I think, perhaps, the benefits of going to the Supreme Court should be looked at.

Across the country, more and more people are becoming aware of Perry v. Brown, or “the Prop 8 case” as most refer to it. While the DOMA cases get a lot of time in the press, somehow they seem less catchy because they revolve around taxes and insurance, while Perry v. Brown is about the right to get married. Not to say that the DOMA cases are unimportant, but when trying to explain the issue to someone new, it is easiest to introduce them to Prop 8 first.
Additionally, hundreds of thousands have seen Dustin Lance Black’s “8”, the spoofy “Prop 8, the Musical”, and all the other publicity and media and internet buzz. It is a more “popular” case in addition to being one that gets right to the heart of the matter… should we be allowed to marry?

And, popularly, the Supreme Court is thought of as the epitome of legal-ness. Americans don’t necessarily understand that by not hearing the case, the Supreme Court actually does make a decision in our favor. The popular misconception is that it has to go to Supreme Court to be the “most” legal. So we are left with a case that average people in the US know about, and the possibility that the highest court in the land will rule on it.

And this leads to the one thing I have always said would win us this war… and that is education. If more people know about it, if we can teach people what it means, we win. If we can show every day folks how discrimination hurts people, families, children, we win. If we get to demonstrate to our neighbors that we are just the same as they are, and only want the same rights they already have, we win. If kids in school grow up being taught tolerance, we win. And not only do WE win at that point, the KIDS win too. They grow up in a world with less prejudice and hate. So everybody wins.

So, while the possibility is that having the Supreme Court grant certiorari does contain a certain risk for Californians, it also has the chance of some big benefits for the entire marriage equality movement. Even if the Supreme Court were to take up the case and simply uphold the Ninth Circuit’s narrow ruling, the benefits are enormous.

All that being said, I would expect nothing less from Mr. Boies and Mr. Olson than to seek for their case not picked up for another year or more of Supreme Court related delays. It is the right thing to do for their clients, and I hope they are successful in their aims of getting this case done NOW. But if it goes to the Supreme Court, let us look to put the simple fact that it does to the best possible use, and continue to spread the good word.

Vienna Hagen, aka AnonyGrl is a New Yorker, longtime P8TT follower, frequent commenter and infrequent commentator.

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