Forcing the Supreme Court to rule on the constitutionality of state laws banning same-sex marriage is as stupid of an idea today as it was a year ago. SCOTUS is simply NOT going to overturn the laws of 42 states. Olson and Boies even seem to get that – they’re arguing that the Yes on 8 folks don’t have standing to appeal, and if they win that argument, this case will never get to SCOTUS.

So while, yes, it’s lovely that this lawsuit convinced a gay judge in San Francisco to overturn Prop 8, it doesn’t change any of the original fears of myself, Tony or the vast majority of LGBT orgs that putting gay marriage in front of the Supreme Court will be a complete disaster. Obviously you were completely wrong just a few hours ago. Care to comment?

If any mormons get into my building and knock on my door, I’ll sic my cats on them!

I’m with you, Randy. Onward and upward and screw the naysayers and doom and gloom crowd.

Having a positive attitude is half of the battle. The rest is hard work, sweat, blood and tears.

By the time this gets to the USSC hopefully more will states will have joined the movement.

It is highly unlikely that the USSC would want to overturn Constitutional provisions of 30+ states

And to add insult to injury, persons married in other countries come here and are recognized as married yet we don’t even recognize our own states? What kind of CRAP is that?

Yes, the full faith and credit clause is applicable and important.

Either way, it wouldn’t invalidate DOMA in its entirety. DOMA goes beyond FF&C and prohibits the federal government from recognizing gay marriages. Even if FF&C invalidated that prohibition, it wouldn’t invalidate the others.

The federal case in MA is not, btw, a full faith and credit argument. It has been a few weeks since I read the complaint, but I believe that they are arguing that there’s no rational basis for the government to recognize opposite-sex marriages performed in Massachusetts, but not same-sex marriages performed in Massachusetts. Their case is strengthened a bit by the findings section of the DOMA statute, which lists, among other things, “traditional morality” as a reason for DOMA, a rationale that was rejected in both Romer v. Evans (equal protection) and Lawrence v. Texas (substantive due process) as failing to advance even a rational basis for the laws in question.

Ah, but couples in New York, New Jersey, Maryland, Minnesota, Washington and Vermont (and I believe Arizona and Indiana) all LOST. So that’s, at best, 50-50 odds. Willing to stake the next two decades of judicial progress on that?

@Andrew: Yes, I know we were agreeing…just elucidating further. Sorry if it came out as antagonistic. I’m just really pissed that some rich straight dudes – who will still be able to marry if we lose – are swooping in against the advice of our own community… and so many here think that it’s a great idea with no regard for how an almost inevitable loss will set us back.

NOT CONFUSED. GLAD signed on. 100%.

Here’s the statement on GLAD’s web site:
http://www.glad.org/current/ne.....marriages/

GLAD has fully signed on and are coming out against this lawsuit as a bad move. GLAAD has too. Both of ‘em. Do your research.

The forbidding of same sex marriage is, I think, the only time state Constitutions were amended to TAKE SOMETHING AWAY! Please correct me if I’m wrong; and then it is only for one certain group – us Gays.

so, PK in the HOUSE – are you a lawyer? Just curious, because that is the argument I’ve been making – what exactly does “equal protection” mean at the Federal level and does everything need to be explicitly spelled out. A break in tradition (meaning can we now in 2009 reasonably conclude that most people think differently about MANY things than they did in 1776?) doesn’t not mean everything will stay the same forever. Or stated more simply we now know that equality can include women to vote, “minorities”, and finally freedom for people with minority sexual orientation.

What a great thing, Freedom, eh? Wish we had a bit more of it.

You’re a bit confused. GLAD, the Gay and Lesbian Advocates and Defenders, did not have a part in this statement.

GLAAD, the Gay and Lesbian Alliance Against Defamation, did participate. But their opinion means nothing really.

GLAD lawyers are likely supportive of the suit because they themselves were attacked by a similar A-gay press release in 2000 and 2003 when they went for marriage in VT and MA.

I’d care more about what the professional A-gay political homos thought if they’d delivered ANY results on this issue, ever. But they haven’t. It’s really that simple. We did things their way since 1991 and it hasn’t worked… more of the same approach will deliver more of the same failure.

This suit may or may not succeed. But the guys behind it actually have a track record of success and getting things done. HRC, GLAAD, EQCA, log Cabin, et al have all failed in their respective areas of strategy and have no standing to criticize others.

The only way the opponents of gay marriage have to trump these decisions is to amend their states’ constitutions to expressly forbid same sex marriage. But, these constitutions are then afoul of the same equal protection considerations under the Federal Constitution. So, we must take that step, not shy away from it. Remarkably, we have avoided making the same arguments so convincing in so many State Supreme Courts, at the Federal level.

There is no reason to be so fearful, now that Democrats control congress and would block a Federal Constitutional Amendment, of making the same equal protection arguments that have been so compelling to so many judges at the state level, at the Federal level.

The same equal protection language is in the Federal Constitution. The only way it could be over-ruled is by a Federal Constitutional Amendment. So, the timing is perfect for bringing the equal protection arguments at the Federal level.

Yes. And when Lawrence was decided 14 states still had sodomy laws.

Currently, 45 states (soon to be 43, if New Hampshire gets it’s act together and Maine doesn’t “people’s veto”) have laws banning same-sex marriage. That’s a lot more than 16 and 14 – even combined.

I’m not saying we won’t have to go to the Supreme Court. I’d just like to see the precedent for SCOTUS striking down laws in place in 40+ states plus the federal level in one fell swoop.

In 1972 — 5 years after Loving v. Virginia, the anti-miscegenation case — the Supreme Court actually did weigh in on the question of the federal constitutional argument for marriage equality. In a case called Baker v. Nelson, the Minnesota courts had denied a marriage equality claim by a gay couple. The case was appealed to the Supreme Court of the United States, which responded by dismissing the appeal “for want of a substantial federal question.” This is a type of action that the Court uses only infrequently — even a lot of lawyers have not heard of it. What it basically means is that the Supreme Court dismissed the appeal without issuing any written opinion, expressing the view that there was no serious federal or constitutional issue to be decided — in other words, it said that it could dismiss without even issuing a written opinion because the claim on appeal did not have enough merit to warrant a full explanation.

This kind of dismissal is binding on the lower federal courts. (It is not binding on state courts, though some choose to follow it anyway.) What that means is that, when the Supreme Court has spoken to a federal issue in this backhanded way, and the exact same issue comes before a lower federal court in a later case, the proper thing for the lower federal court to do is to dismiss the case because it is bound by the Supreme Court’s earlier action.

As should go without saying, the Supreme Court’s summary dismissal in Baker v. Nelson was flat wrong. It was wrong when it was decided in 1972, and, more to the point, I doubt that any serious lawyer would argue that it can be defended on the merits today. Even if you disagree with the constitutional arguments in favor of marriage equality, I don’t think anyone could argue today that the issue does not present a serious and substantial question, especially in light of the Court’s rulings in Romer v. Evans (the Colorado / Amendment 2 case from 1996) and Lawrence v. Texas.

But the Supreme Court has also said, on several occasions and very forcefully, that lower federal courts are not permitted to disregard binding Supreme Court precedent simply because there have been intervening changes in the Court’s own cases that undermine the original decision. Rather, the Supreme Court has said that it is the Court’s job, not the job of lower federal courts, to say when an earlier Supreme Court precedent has been effectively overruled by subsequent developments.

What does all of this mean for the Olson / Boies lawsuit? Insofar as their lawsuit argues that marriage equality for everyone is required under the U.S. Constitution, there is a strong argument that the lower federal courts should simply dismiss and decline to hear the case because they are bound by Baker v. Nelson. If that happens, then the Supreme Court itself is the only one that could overrule its earlier precedent and actually decide the case on the merits.

This is an important fact to understand for a number of reasons. First, as a simple matter of predicting what will happen, it’s entirely possible that the Olson / Boies lawsuit will be dismissed very quickly by the lower federal courts. Second, it reinforces the point made by the LGBT groups about the importance of laying a solid groundwork before we get our one shot at litigating this issue before the Supreme Court (and, realistically, we will likely get only one shot). Baker v. Nelson prevents the lower federal courts from engaging in the ordinary process of wrestling with a contentious issue in a series of cases before the Supreme Court finally weighs in. It is therefore all the more important to develop a solid foundation of precedent in the state courts, because we may not have the opportunity to do that in the federal courts. And, with all due respect to Olson and Boies and despite my whole-hearted agreement that we should not have to wait to enjoy the rights that we deserve, the fact is that the Civil Rights Movement was the most strategic, careful and patient litigation effort that this country had ever seen, waiting decades to bring the school desegregation and anti-miscegenation cases until they knew that they had laid a sufficient groundwork to achieve a victory before the Supreme Court. I am thrilled at the outrage that these two men feel on our behalf and I welcome their input and their efforts. But they do need to learn their history.

Two more quick points. This kind of “dismissal for want of a substantial federal question” is not a good way to decide cases, and there is a strong argument that it should always be construed narrowly. So, for example, in the challenge to the federal portions of DOMA that GLAD has brought in Massachusetts federal court, Baker v. Nelson should not pose any obstacle. GLAD is raising a very different kind of claim — that the federal government can’t discriminate against couples who have already been validly married by their home state. The lower federal courts are free to decide that issue on its merits.

By the same token, if Olson and Boies had brought a much narrower challenge to Proposition 8 — if they had argued that the particular sequence of events in California raised a unique constitutional problem because Prop 8 took marriage away from a group of people who already enjoyed equal rights under state law — then matters would be different. Baker v. Nelson probably would not control a more carefully drafted lawsuit like that, and the dangers associated with such a lawsuit might be somewhat more contained (though there would still be serious questions about whether it represents the right approach). There are hints of that more narrow argument in the Olson / Boies complaint, but only hints — in the end, they do not make the more careful argument but instead just go for broke.

Goodridge et al. v. Dept. Public Health – filed by GLAD

In re: Marriage Cases (CA) – filed by NCLR, ACLU and Lambda Legal

Kerrigan & Mock v. Connecticut Dept. of Public Health – filed by GLAD

Varnum v. Brien – filed by Lambda Legal

GLAD, NCLR, Lambda Legal and the ACLU are four of the groups saying that this strategy is a bad idea. So, actually, the folks who filed the “suits that brought us the right to marry in four other states” all think THIS lawsuit is a bad idea.

“Bottom line, if we get full rights, these organizations go out of business.”

And that’s not a bad thing!

I watched Larry King last night and I got the definite impression that Messrs. Olson and Boies are truly committed and dedicated to the concept of equal rights for all American citizens.

LGBT people are at a critical, turning point in history. The issue is no longer on the back burner for us and we refuse to have it shoved back there again. This is not a time for the faint-of-heart or those too timid to speak up and demand their full civil rights.

While there are many, like the some 40,000 bi-national couples who will benefit from SSM or the passing of the UAFA, this goes so much further than than and covers a host of issues that need to be addressed.

Why anyone on these threads would hasten to excuse or explain the failings of national gay organizations, who have dropped the ball time and time again, while attacking two well known, highly qualified attorneys who wish to come to bat for us, is mind-boggling.

Doing something, anything, is better than sitting back and doing nothing.

No war was ever won by the warriors sitting back, waiting and doing nothing.

Yeah, Congress voting 427-81 for DOMA was SUPER inspiring. (That’s the combined House/Senate vote.) The backlash against basic gay rights laws – like state ENDAs – was even MORE inspiring. Go Hawaii!!!

“We still don’t have any federal marriage rights (which is where the real financial prize is still out of our grasp) plus I am no longer married the instant I cross the state line.”

Ummm…this lawsuit isn’t attempting to just fix EITHER of these situations. It’s not trying to strike down DOMA, it’s trying to strike down Prop 8. That’s a huge difference.

There’s already a decent lawsuit out there – filed by GLAD, one of the LGBT orgs you’re decrying – that aims to get federal recognition of same-sex marriages performed in the states. There’s an awful lot of precedent to back that up. From there, with a few more states recognizing marriage, it becomes easier to argue interstate recognition.

This lawsuit is basically asking the Supreme Court to strike down Prop 8, and thereby strike down 40+ state bans AND DOMA in one fell swoop. When, I ask you, in the history of SCOTUS have they EVER done ANYTHING that sweeping? This case just does NOT face good odds and a loss will do a TON of damage.

I’m not saying stop fighting. I’m saying let’s not do stupid things. Go knock on doors. Scream at your elected officials. Get angry and get active. Just don’t screw folks in other non-California states with a poorly timed lawsuit that could close the door to marriage for decades.

Many of the organizations protesting against it (HRC, GLAAD, Log Cabin) have done absolutely nothing other than piss through millions of dollars. Others have their own strategies that they’re free to pursue.

I don’t know yet if the lawsuit is a “good strategy” or not.

But I remember back in 2000, a similar coalition of organizations slammed the Gay and Lesbian Advocates and Defenders for their Vermont lawsuit, warning of “backlash.” Ditto in 2003 in Massachusetts.

The dire warnings were similar — a wave of anti-gay hate would be inspired by the rulings and wash over the country and gay relationships would be banned for 100 years!

But if not for those lawsuits, marriage and even civil unions wouldn’t exist in this country for LGBT Americans.

The two lawyers litigating this case aren’t amateurs. They’re two of America’s top lawyers and have experience litigating in front of the Supreme Court on some of the biggest legal precedents of our time. It’s not only a liberal — it also includes Ted Olsen, husband of the late Barbara Olsen. He’s hardly a radical leftie.

And conservative courts have been increasingly favorable to equal marriage — see Iowa, whose all-conservative-Republican court ruled unanimously in favor of marriage equality.

Give the super-lawyers a chance. HRC, GLAAD and Log Cabin have NO place criticizing the strategies of others considering their extraordinarily poor track records.

Not saying the new suit is the best strategy, just pointing out that the alternative (winning hearts and minds and winning in the ballot box) may be a long long way off. Looking forward to hearing some analysis from both sides. At a bare minimum, if you’re going to push a constitutional issue in the federal courts, there are very few who are better than Olson and Boies. I take some comfort in that.

Most other civil rights were given to us by the courts…or don’t people remember “Loving v. VA.” which ended bans on inter-accial marriage in this country.

The organizations opposing this lawsuit are the same ones that messed up the campaign against Prop 8 in the first place. They are also the same organizations that begged the couples in the MA. suits, the Iowa suits etc… to drop their cases because they could be bad for the cause.

Bottom line, if we get full rights, these organizations go out of business.

What I’m referring to is the economy is a mess, right or wrong, he’ll be blamed at the end of four years if things are considerably better. He might as well just plow ahead with what he knows to be right,more importantly, what he already promised in his campaign about being a tireless advocate for equality – and let the chips fall where they may.

Obama’s words are being used against us at every turn and waiting for his support is pathetic and futile. Waiting for the time the winds change has passed. This is NOT a States rights issue. A change at the Federal level is the only way. Proceed.

Let’s examine these major organizations for a moment? What is their purpose and what happens when it is fulfilled?

While there will always be bigotry around us, what will be the purpose of HRC and NGLTF once we have achieved legal parity under the law?

Will these organizations disband?

I’m beginning to think they are unwittingly becoming like their adversaries – they want to win, but not too quickly, as their cash cow will disappear. I think they see themselves living in Washington for a long time.

And our A-List Washington Elite wouldn’t want their lifestyles to slip any.

This is war, let’s take it every where and not let up.

With the straight men doing the jobs of our organizations for them concerning Prop H8, maybe the people at every gay event holding their hands out for contributions can use their time to lobby our “Fierce Advocate” and congress on getting DOMA stuck down.

Does the “all men are created equal” in the Constitution mean anything? Does every dot and tittle need to be explicitly spelled out?

I forgot, there is big money involved; I’ve said for a long time Law is often and primarily for the benefit of lawyers.