Is a Federal Prop 8 Lawsuit Really Something to Fear?

Should we lobby legislators for our civil rights? Or sue for them? That’s the central argument behind whether to support the federal lawsuit from Ted Olson and David Boies that could take Prop 8 and, effectively, any same-sex marriage ban all the way up to the Supreme Court. But what if SCOTUS doesn’t look kindly on us, and shoots down the argument?

It’s a very real possibility, but last night on Hardball Olson and Boies made the case that things are swinging in their (and thus, our) favor. As we discussed on Wednesday, many gay rights groups don’t agree with this strategy, fearing that an unfavorable SCOTUS decision will put us in a bigger hole than we are now. Instead, much of Gay Inc. — including ACLU, Lamda Legal, GLAAD, GLAD, HRC, Victory Fund, Log Cabin Republicans, and PFLAG — wants to win same-sex marriage at the legislative level, or at least hold off on going the courtroom route until the climate improves.

Are their fears unfounded? Olson and Boies think so. And so does regular gay rights scribe craigkg:

Our community has waited long enough. Sufficient groundwork has been laid. We have a growing tide of support that will only strengthen with each passing year. And the Court will have the enormous weight of history to bear in a case that will be remembered in the glowing light of Brown v Board of Education or the scorn of Dred Scott v Sanford and Plessy v Ferguson. Will they do the right thing? We can’t know for sure, but neither did Houston and Marshall.

In closing, I’d also like to point out that there isn’t much to lose here. If Professor Wolff is right that precedent is already stacked against us thanks to Baker v Nelson, having another case added on isn’t much of a change in the status quo. The downside is the issue would be left to the states on a state by state basis…just as it is now. If we lose, we continue the fight at the state level a bit longer and try again in a few more years using the Roper v Simmons argument to overturn the prior decision as the dominos fall one by one.

Is there really not “much to lose here”? And if SCOTUS rules against us, can we really take things back to a state-by-state level? Critics argue a SCOTUS decision that permits discrimination against same-sex couples would empower anti-gay groups (and legislators) to continue banning civil rights … because the justices said it was okay.