Simple Justice

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gay marriage - Scott Olson.jpgWhen I think of the nation's first federal same-sex marriage trial, scheduled to begin in San Francisco today, I think of the book "Simple Justice," Richard Kluger's brilliant work on the legal and factual foundations of the Supreme Court's Brown v. Board of Education rulings in 1954 and 1955. Kluger explains how the landmark decision didn't come as a bolt out of the blue but rather as a result of a well-choreographed (and decades-in-the-making) legal strategy by  de-segregationalists like Thurgood Marshall.

By contrast, and relatively speaking, the legal issues raised by the debate over same-sex marriage--whether the equal protection clause of the Constitution is violated by the disparate treatment affording opposite-sex and same-sex couples--has rocketed to docket. It's only been a few years since Massachusetts became the first state to recognize same-sex marriage and clearly courts and state legislatures around the country have not coalesced around a particular legal theory (or political movement). It took decades to bring about Brown--and 50 years on its promise still has not been fully met. Never mind the justice of it, but can we expect same-sex marriage to be recognized in less than a decade? 

You can look at it two ways. You can argue that the lawsuit--by Bush v. Gore alums Ted Olson and David Boies--comes too far too fast for a nation still coming to terms with a divisive issue. You can worry that the Supreme Court is still too conservative to countenance a universal ban against local laws that ban same-sex marriage. You can go back and forth about what Justice Anthony Kennedy would do if confronted by the case--clearly there is no "national consensus" as of yet on the matter. And you can fret about the possibility of the case generating bad legal precedent against same-sex marriage which future litigants will have to overcome to win. 

Or you can argue that the road to a future Brown-like ruling has to start somewhere in the federal courts and that a trial, in San Francisco, with an independent judge and two heavyweight lawyers fighting for equality, isn't such a bad time and place to make that start. U.S. District Judge Vaughn Walker has shown before that he isn't afraid to go against the grain. Olson and Boies are no dummies and sufficiently entrenched in the legal and political Establishment to be taken seriously. And the venue for a trial like this couldn't be better for the agents of change. This will not be the "Scopes Monkey trial" in Tennessee a century ago.

I have no idea how this trial will turn out. But I am willing to predict that no matter what Judge Walker rules, and no matter what the 9th Circuit says about that ruling, and no matter what the Supreme Court does in response, we are still going to be closer to the start of this saga than we are to the end. In the meantime, do yourself a favor and read Kluger's book if you want a better idea of how hard it is to create meaningful change under the rule of law.   

Photo credit: Scott Olson/Getty Images

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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