Bad Litigation

Is Filing a Lawsuit Against Prop 8 Actually the Worst Idea Ever?

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Waiting in the wings for the California Supreme Court to uphold Proposition 8, former U.S. Solicitor General Ted Olson and attorney David Boies (who repped Al Gore against Olson in the Bush-Gore election face-off) stepped up to make a federal case out of prohibiting same-sex marriage. Literally: They’re filing a federal lawsuit challenging the legality of Prop 8. But does pushing the issue up the court system (en route to the Supreme Court) help the cause, or might we actually be digging ourselves into an inescapable hole?

The strategy of suing our way to equality is the wrong one, according to a new missive from Freedom to Marry, which has the ACLU, Lamda Legal, GLAAD, HRC, Victory Fund, Log Cabin Republicans, PFLAG, and many others on board (PDF). Rather than engage in legalese, we should be reaching out to friends and family and neighbors and colleagues, reminding them gays are just as deserving of rights as any other American, and then getting those folks to the ballot box when we can put the issue back up for vote.

Because if we don’t? This case could end up in front of the Supreme Court. And that, the theory goes, is the worst place for same-sex marriage right now. Because the justices haven’t been our friends: “The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law. Right now, we need to make gains in both public opinion and state law. The current Supreme Court has been taking a pretty narrow view of civil rights and civil liberties. Even the strongest gay rights decision the Court has issued—the Lawrence v. Texas case striking down laws against intimacy for gay couples—explicitly commented that it was not saying anything about formal recognition of same-sex relationships. The
arguments in the briefs are not the only thing that influences the Court’s decisions. The climate of receptivity and momentum in the country on these issues matter as well. There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices.”

And what happens if we do get Alito and Roberts and Ginsberg (and soon, possibly, Sotomayor) to hear our case? They could decide against us — and cost us everything. “There are also serious risks if we go to the Supreme Court and lose, especially if we’ve asked it to set aside state limits on marriage. We could still ask state courts to strike down marriage bans under state constitutions, and we could still ask state legislatures to pass marriage laws. But most state courts and legislatures pay attention to what the U.S. Supreme Court says about constitutional principles of fairness and equality. It will be harder for us to get state courts to strike down laws excluding same-sex couples from marriage (and many from civil unions, too) if the U.S. Supreme Court has said they are okay under the federal constitution (take a look at how much the Connecticut and Iowa Supreme Courts relied on analysis from the U.S. Supreme Court in their marriage decisions). There is a very significant chance that if we go to the Supreme Court and lose, the Court will say that discrimination against LGBT people is fairly easy to justify, and that same-sex couples can be denied the right to marry based on mistaken, antigay assertions that LGBT people make bad parents.”

Which means even states that are “gay friendly,” or have court systems and legislators sympathetic to the cause, could have their hands tied by a U.S. Supreme Court ruling.

If it were up to you, is there a question of whether to sue or not to sue?

UPDATE: Keith Olbermann and FindLaw.com’s John Dean discuss the lawsuit on the May 27 show: