Refuge in abstractions
When I was a newspaper reporter many years ago, the word around the City Room was, "Nobody reads the paper on Saturday." Yet the Saturday New York Times is sometimes, surprisingly, one of its best efforts of the week. Yesterday's op-ed page contained four worthy pieces, including a very insightful commentary by UCLA Law Professor William Rubenstein on gay marriage, which as most readers here know is Portland's all-consuming controversy du jour.
Politicians, Rubenstein notes, "have avoided the main issue and sought refuge in the abstractions of the Constitution. Instead of asking what kind of society we want, they argue about what our structure of government can permit." The Bushites prefer to couch the debate in terms of "judicial activism," while the Democrats talk of "states' rights." The Republican position "turns the debate over gay marriage into an arid discussion about the 'separation of powers,' a concept enshrined in the Constitution." Meanwhile, Rubenstein criticizes Kerry & Crew's states' rights emphasis on the same grounds: "This is how slavery was debated for America's first 100 years, and the rights of African-Americans and women were discussed in these terms for the next hundred."
It's a very thought-provoking piece.
Here in Portlandia, proponents and opponents of gay marriage (including the state attorney general's office, which appears to be taking both sides of the issue) have been busy this week setting up a test case that they hope will result in a quick decision by the Oregon Supreme Court. Apparently, the ACLU will sue the state on behalf of a gay couple for refusing to recognize a gay wedding performed under a Multnomah County license. The trial court proceedings will be expedited to focus on the constitutionality of the state's hetero-only marriage statute, and the parties have agreed to seek to bypass the Court of Appeals and go straight to the State Supreme Court.
Unless some new opponent of gay marriage somehow derails this train, the debate in the Oregon court proceeding will be devoid of the structural issues at which Rubenstein takes offense. It will be the state constitution, not the federal one, involved, and so the separation of powers issue will be absent. And one doubts that much will be heard about judicial activism, at least inside the courtrooms.
Also missing from the test case will be the procedural and structural issues swirling around the county commissioners' actions in licensing gay marriage. With the plaintiff being someone with no grievance against the county, and the challenge being strictly to the acts of the state legislature, we'll probably never learn whether the commissioners violated open meeting rules. Also likely to be rendered moot will be the question whether the county has the power under Article VI of the state constitution to ignore a state statute based on county officials' own view that the statute violates newly emerging constitutional rights. The "defense of marriage" folks point out that the test case agreement preserves their rights to make these arguments, but I suspect that once the main Oregon constitutional question is resolved, courts will find a way to dismiss these claims on the ground that they no longer make a difference.
To the lawyer in me, constructing a fully stipulated case to avoid these issues is a shame. Courts have always tended to avoid the most momentous constitutional rulings when there were other ways to dispose of a case. Given the way the parties have concocted the test case, however, the side issues appears to have been cleared away. Rubenstein would doubtlessly approve.
There could still be some surprises along the way, of course. There are other court proceedings already filed, and some of the litigants and judges in the other cases may not see fit to sit idly by while the official test case moves along.
And it may proceed more slowly than its sponsors want. Judges in Oregon are elected every six years, and probably as a result of that, they move very carefully and give each other as much support as possible. (For example, three State Supreme Court justices, including the only openly gay one, are running for re-election now, although at first glance there doesn't seem to be much of an opponent for any of them; one is completely unopposed.) Therefore, it's not clear to me that the Oregon Supreme Court will agree to bypass the normal appeals route. The case could still wind up going through an intermediate appeal.
Moreover, whenever the Supreme Court takes the case, it may not agree to the wham-bam schedule that the parties prefer. It is entirely possible that no final decision will be reached in the litigation until next year.
By that time, there may be an initiative on the ballot in Oregon settling the state constitutional issue. Whereas it usually takes years to amend the U.S. Constitution, the Oregon Constitution can be amended in a matter of months. Depending on the wording of the ballot measure, the issue in the test case could be rendered moot. Which would be all the greater political reason for the Supreme Court to move at its normal, slow pace.
If an Oregon ballot measure amended the state constitution to define marriage as one man-one woman (or in the unlikely event that the Oregon courts declared the existing statutory ban on gay marriage constitutional), the litigation would shift to federal court, where Oregon law would be tested against the federal constitution. By that time, we'd have a new President, or the same old one we have now, and likely a couple of new justices on the U.S. Supreme Court. Those new justices could very well be the swing votes who decide where all this finally winds up.
As I've said, however this comes out, the big winners will be the lawyers.