Bad Litigation

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


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 Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas’s law.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’s John Dean discuss the lawsuit on the May 27 show:

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  • Qjersey

    It will be over a year before this case winds its way up to the Supremes, and who knows how many states will add marriage, civil unions or DPs in that time.

  • Tony

    It is a very bad idea. This Supreme Court as it stands would not rule favorably.

  • dgz

    @Qjersey: i know it won’t be 50, and that’s what it would take.

    conservatives are probably jumping for joy that we’re doing this — it’s a fast track to unfriendly, binding precedent, and subsequent supremes will likely be loathe to attempt overruling their predecessors… there’s even debate over whether that’s possible.

  • Matt Deco

    I feel that if we wait to go to the courts so that we can basically go door-to-door to every household in America and hope to change minds…. we will still have plenty of doors to knock on in fifty years.

    Despite this minor setback, we do still have a snowball rolling down a hill here.

    And how about the fact that justice is on OUR side?

    After all, the courts always side with civil rights…eventually. It just depends on how long it will take…

  • Captain Freedom

    Hence why we MUST get marriage back on the ballot in 2010. It will pass this time. I know it! I’ve seen the changes here in California. If we overturn Prop 8 through the ballot it will destroy the Christian Right FOREVER! If the U.S. Supreme Court rules on Prop 8 it will only invigorate and energize them! It could also put in danger the marriage statuses of the 5 other states where its legal. This is a very bad move but thankfully I think it will be over before it even reaches the high court.

  • dgz

    @Matt Deco: true, but binding precedent in the Courts will delay that legal sea-change, dooming every gay who will still be living outside progressive states.

  • Othniel

    I just finished reading the request for an injunction against Prop 8, and as a lawyer I have to say it is powerfully written.

    If Justice Thomas will listen to anyone it is Ted Olson. The Lawrence majority is intact, assuming a new justice would vote as Souter would have, and I just do not get this fear. We will never get anywhere if telegraph to everyone we are afraid.

    It is the right wing right now which is afraid, and they are afraid of Ted Olson. They recognize they are slowly losing Justice Thomas, and I do believe the pace of that will accelerate. Loving v. Virginia – Justice Thomas and his white wife benefit from this ruling, and it is the principal case argued.

  • XY

    I say try every track to justice possible. It’s certainly right to organize and put people toward the strategic state-by-state moves for sure, but honestly I believe involving as many people as possible can only help. If that means some people are going for the Supreme Court, then so be it. We need action and ideas everywhere, and not all of us gay people can just sit and wait.
    There has been too much injustice and damage to some of us, and having to convince everybody that I deserve equal rights one by one, piece by piece, just doesn’t cut it for some of us, as we are not all so noble to do that.

    If America really supports the principles of its Constitutions then it must address these issues now, if our legislators do not.

  • rick

    YES! and considering who the lawyer is, it is a trick to get a supreme court ruling against gays.

  • dgz

    @rick: yeah, i’m worried about that possibility, also the idea that he may just see it as a professional challenge, or another shot at the history books, without any real, strategic concern for us.

  • andy

    I say go for it! Try everything and Keep trying.

  • Chris

    How about for the next round we make it an either/or situation. Either Gay marriages passes OR STRAIGHTS CAN’T GET DIVORCED !!!

  • Sean

    @Othniel: I totally agree. XY also has it right. Only waiting for individual voters to change their minds isn’t good enough. We need to use ALL paths open to us.

  • schlukitz

    Ooohhh….tremble, tremble, shiver, shiver.

    Dare we speak up and risk offending anyone? I mean, if we get too, too vocal about wanting our rights, this could blow up in our faces, right? We could risk losing the hearts and minds and be shut out in the cold forever.

    And think about all those people who will turn against us because we are getting just “A bit too uppity” for our own good? These gays need to be reminded just who is in charge here.

    Get over yourselves (and y’all know who you are) all of you timid, apathetic apologists. Doing something, anything, is always better than sitting around, doing nothing and waiting and hoping for something to happen.

    There is an old expression. “Strike while the iron is hot.”

    Pounding on cold metal, does very little to change the look of it.

  • Johnn

    I order to find and keep a husband, I’ll have to move to the Northeast from the South, I don’t think I’ll be able to handle the Hard Cold Winters up there. But before I get too old, I guess I’ll have to trek up North to snatch me a husband:) The word “Marriage” has such a nice ring to it, I guess I’ll do what I gotta do.

  • timncguy

    @rick: It’s not just Ted Olson. David Bois is involved as well. I don’t think this is any kind of “trick”.

    It would take YEARS for it to get all the way to the supreme court. And, it is supposed to have a very good chance of winning in the lower court where the suit has been filed.

    I say go for it.

  • douglasgibsonjr

    Here we go again. I am so sick of hearing wait, wait, wait! I am sick of hearing the timing is not right. Well, my partner and I don’t have time to wait for people to give us permission to get married. It is time to go for this every way we possibly can.

  • John K.

    @dgz: It’s true that setting a bad precedent is not a good idea, but no precedent is completely binding. Before Brown v. Board, there was Plessy. Before Lawrence, there was Bowers. Bowers was in, what 1986? Lawrence in 2003. 17 years. So, when, exactly, should we file a suit? Scalia, Thomas, Alito, and Roberts could all still be on the Court 17 years from now, which means we’d still be waiting anyway. Obama simply gets to replace the old liberals. How long are we going to wait? I’m leaning towards taking a shot now. If we lose, even though it puts us back, I don’t think it puts us back as far as everyone thinks.

  • Raphael

    Well, EQCA lost every fight so far. Maybe we should trust them on this?

  • John K.

    @Captain Freedom: I agree that overturning Prop. 8 in 2010 would be the best thing at this point. One problem though: it’s not a guarantee. 2012 isn’t a guarantee either. We could hover at 51-49 against for the next 8 years. While a US Supreme Court decision is no guarantee either, I think the rewards outweigh the risks.

    You say a US Supreme Court decision overturning Prop. 8 will invigorate the right? I say it cripples them on this issue. They will have no recourse whatsoever. What are they going to do? Pass a US Constitutional amendment? Good luck, since MA, IA, ME, and VT. have marriage, NY, NJ, NH, MD, CA have marriage bills pending (or in the case of CA, had the legislature pass one twice already), and IL, WA, HA, and OR either have civil unions or are considering them. That’s 13. You think those state legislatures are going to vote for a federal constitutional amendment banning gay marriage? I think not. There will be plenty more states on that list, too, by the time the question would come up. Not to mention, it would have to get 2/3 or a currently democratically DOMINATED Congress. Sure, things can change there, but even if somehow they miraculously got an amendment through the Congress, again, it would not stand a chance of being ratified by the states.

    So, again, a win in the US Supreme Court is game over, right wing defeated and never to be worried about on this issue again.

  • John K.

    @Othniel: I don’t know about Thomas, but that would be nice indeed. Kennedy is the wildcard. He’s pretty good on gay rights. He wrote Lawrence, and I think he wrote Romer (could be wrong). Even though he said Lawrence didn’t necessarily mean there was a right to marriage, that’s par for the course in these cases; marriage wasn’t before the Court. That doesn’t mean Lawrence forecloses marriage by any means.

  • John K.

    @rick: That crossed my mind too (that this guy is actually trying to tank the case).

  • Alex

    Will the court rule against us? Yeah, probably. Will they be right? No. Loving makes it clear that marriage is a fundamental right, and Lawrence points out that our relationships are our business, not the governments. The 14th amendment clearly says we get the same treatment under the law. These guys are right, and even if they lose, they should go forward with it. We’ll get our rights however we have to, but this is a righteous attempt to make the highest authorities on the law in the land to uphold the law, instead of playing politics.

    Of course, the phrase “lawyers who argued Bush v. Gore” doesn’t exactly elicit confidence in the Supreme Court.

  • John K.

    @timncguy: That is also true. California and the Ninth Circuit are good for us.

  • anref

    the lines are being drawn here.

    First this is away down the road. We have no idea what the court will look like in 4, 7 or 10 years. If this case with these two lawyers makes it to the supremes the media coverage will be intense. Finally we can shine a light on civil rights for all – if the court looks then as it looks today and they rule against us – then the light has been shined brightly on who the “activist” judges really are.

    i have no fear and thank god that David Bois is involved.

    That press conference answered many of my questions – I suggest that everyone watch it and ask yourself what has glaad and hrc done of this issue and do you think their plan is the right one. I would feel better if Lamba felt better about this

  • Steve

    If there was ever a decision to appeal, this one is it. The CA decision explicitly states that amendment 8 carves out an exception to equal protection. The phrase “equal protection” occurs several dozen times in the opinion. You can read it:

    If the amendment modified or limited a right, but modified it in the same way for everyone, it would pass constitutional review. But the CA court chose not to read Amendment 8 in that way. The could have left the equal protection question open, and just address the narrow procedural question of the amendment process. But they chose not to do that, either. Instead, they explicitly decided to create an exception to equal protection, and each if the justices said so in so many words. The violation of the 14th amendment could not be any more clear.

    The problem is that “equal protection” works two ways. Every protection that is given to anyone must be given to everyone. And, every protection that is denied to anyone must be denied to everyone.

    Of course IANAL, and this isn’t legal advice. Boies and Olson are much more qualified to decide this than I. They seem to agree.

  • PKintheHouse

    The gay rights movement failed to lead the way on marriage from day 1. It was individual couples who sued Hawaii on there own behalf, at their own expense. The “movement” only got involved when the Hawaii Supreme court agreed to take up the issue.

    They are still crying the same “now is not the right time” [email protected]%!*.

  • John K.

    Don’t forget another possible outcome from this case: an opinion from the Supreme Court that says “marriage” isn’t required, but at least civil unions are required. That would help LGBT people across the country as well, and Prop. 8 could still be repealed at the ballot box.

  • JTHC

    I don’t think this is a mistake. Even if they lose, all it means is that gay marriage is not a protected right under the constitution–it won’t do anything to the states that already recognize it or to the states that likely will recognize it. In other words, it just puts us back to status quo. But if they win… .

  • dgz

    @John K.: i see your point. however, i think that negative precedent matters in that it dissuades liberal judges who are nonetheless fairly strict constructionists from issuing groundbreaking rulings. but who knows? hail Mary passes sometimes work… and always make the highlight reel.

    but i’m not worried about scalia, alito, thomas, or roberts — i’m worried about kennedy.

    as for whoever mentioned the idea that the Court might require civil unions… that is actually a more remote possibility than an overturn, imho –> that’s legislating from the bench.

  • Bruno

    Typical scaredy-cats we are. The court as it stands would be divided down the middle with Kennedy, who’s voted favorably towards LGBT issues in the past, as the swing vote. And there’s nothing the Supreme Court could rule that would actually reverse any of the strides we’ve made. I think it’s a good idea a long time in the making.

  • PKintheHouse

    Maybe Ted Olsen is trying to rescue the Republican party from the destructive demands of the Religious Right.

  • Bertie

    This is a FEDERAL fight – something we discovered on the night of Obama’s election when he smiled because he won and CA gay marriage was voted OUT.

    The non-prof orgs who ALL clamored for donations via spam mail within seconds of the CA Supreme Court decision are out of touch.

    They say we can change the minds of “fair-minded but still-conflicted voters” in suburbs and on farms who cling to their religious bigotry and view marriage is only a SACRED institution (ala Obama and his “god is in the mix” rap)

    The orgs also mention in the press release their belief in the fairytale that Obama will repeal DOMA and maybe those quaint married gays in Massachusetts will not be discriminated at the federal level anymore.

    We are past the one state at a time B.S.
    Massachusetts widowers are still denied their gay spouses pensions- thanks to DOMA.

    This is battle for equal rights. A WAR. Do we really expect the Catholic and Mormon money machines to relent next time around?

    Keep calling Obama out as a LIAR. A coward. A man who is WRONG regarding his “beliefs” about marriage.

    Did the old timer racist whites of Alabama ever change their mind on Negroe full equality in 60s ? no — the federal government pushed the entire country.

    We are demanding full CIVIL equality at the FEDERAL level.

  • InExile

    Maybe by the time it reaches the Supreme Court some of the right wing hacks will retire, unless Obama installs more!

  • Thom Freeheart

    Ted Olson is on Larry King tonight (so to speak). He says that marriage of gays is a fundamental right under the Constitution.

  • James

    Obama said, “I’m a Christian. And so, although I try not to have my religious beliefs dominate or determine my political views on this issue, I do believe that tradition, and my religious beliefs say that marriage is something sanctified between a man and a woman.”

  • schlukitz


    Hear. Hear.

    This one heart, one mind, one state at a time bs could take forever.

    Even if 52 states eventually allow SSM, what good would it do? Those marriage still would not be recognized on the federal level nor allow bi-national couples to sponsor their spouses for citizenship simply because the marriages, though state legal, are not fed-legal.

    Considering the time, energy and money this snail-paced approach will take, isn’t it kind of like spinning our wheels?

    And should we not be looking at the larger issue, which is federal civil rights instead of marginalizing the cause by calling it same-sex marriage on a state-by-state basis?

    At best, it’s a hollow victory.

  • schlukitz

    Oops…typo. That should read 50 states. ;-)

  • Steve

    @PKintheHouse: I think the HRC, and other “gay rights” organizations, have a clear motive for saying “now is not the time.” The HRC collects millions of dollars every year, and pays very respectable salaries to its officers. What will happen to that funding after the goal is achieved? They know it. So, they have a financial incentive to move slowly. We will have equal rights, some day. If HRC and delay that for a couple of decades, they current officers can retire comfortably.

  • Mike Barton

    I’m just thinking out loud here, so please follow along. A lawsuit was just filed in the federal courts. That’s the circuit, followed by the appellate courts before the case even gets to the Supreme Court, right? How likely do any of us think it is that the omnipotent, fearful Guardians of Injustice in Black (as some are painting them) will even hear this case? Certainly not before there is an attempt to repeal Prop 8 in 2010. If that effort is successful, that would render the federal suit moot, wouldn’t it? If that effort fails, it may then be seen as a lucky charm that two couples had the foresight to file suit when they did.

  • Sam

    @PKintheHouse: And the couples who sued in Hawaii consequently FUCKED EVERYONE!!! Had you ever heard of a gay marriage ban before the suit in Hawaii??? The reaction to it – federal DOMA plus 40-some states passing laws banning gay marriage that wasn’t even legal yet – screwed couples all over the country. For what? That’s exactly what this case will do if it gets to SCOTUS and loses.

    I don’t think you all are getting the gravity of this. As same-sex marriage becomes more accepted, there will be the possibility of lawsuits in more moderate states – we could continue to win marriage through the courts in states where the legislature would never have the guts to do it on their own. But if SCOTUS rules against us, every single one of those courts will say “well, it’s already been decided by the highest court in the land…there’s nothing we can do.”

    The flip attitude on this pisses me off. Two straight lawyers are swooping in and filing a bad lawsuit against the advice of EVERY major LGBT organization and are going to FUCK US. Who the hell are they to come in and “save” us? I’m going to stick with the leaders of our own movement. This suit – now – is a terrible idea. California isn’t the whole enchilada. Repeal your own damn fucked up amendment and don’t scorch the earth for every other state that might want to use the courts in the future.

  • Sam

    @JTHC: WRONG! It will totally hamstring any ability to win recognition through the courts every state that might someday do so.

    @Bruno: Well, no. It would just fuck everyone in every other state that might someday want to get same-sex marriage through the courts. But at least some straight dudes in California will be able to say “well, we might not have won and now we’ll only have same-sex marriage in a handful of northeastern states for decades, but at least we weren’t ‘scaredy cats’.”

  • AstroJet

    As a California resident whose marriage is on hold at the moment, I say go for it. I was skeptical at first, but after watching their news conference in its entirety, I feel they know what the hell they’re doing. These are not your garden variety, “advertise on the TV at 2am” lawyers. They know constitutional law and the workings of the Supreme Court.

    Why are our right-honorable “gay leaders” so damned afraid to take a risk? Lay off the arm chair scenarios as to what will happen, go for it and see what happens for real. If we don’t prevail at this time, then we learn from it and go for it again. We have balls, so let’s use them, for heaven’s sake.

    If this makes it to the Supreme Court and we prevail under the current makeup of the court, then the victory is that much sweeter for all of us.

    Perhaps if the no on 8 campaign took some gutsy risks like this during the run up to the election, we wouldn’t be having this debate right now.

  • Chuck

    Yes. How can we get these two off the case. The guy who lost the 200 election for Gore is teaming up with W’s former lawyer and they’re taking the case to the Supreme Court who haulted the Florida recount and declared Bush the winner in a decision that even they said at the time could never be used as precedent because it was so wrong, are going to hear the case for gay marriage equality. Is this sarcasm?

  • SM

    I think the lawsuit isa good idea. Anything that keeps this issue in the news and headlines only helps your cause.

    California and America is at the tipping point on gay marriage. As long as you all keep pushing forward you will get there.

    I watched the gay community get kicked in the teeth again yesterday and I don’t agree with the Proposition 8 decision.
    Turn California around and make history as the first state to allow gay marriage by popular vote.

    Straight Progressives love a challenge and we hate to lose, everyone working together can do it.

  • dgz

    just saw ted olson on larry king, and i take it back — he’s definitely for real.

  • Jeffrey

    @Sam “And the couples who sued in Hawaii consequently FUCKED EVERYONE!!! Had you ever heard of a gay marriage ban before the suit in Hawaii???”

    No, but I also had never entertained the idea that I could ever have a gay marriage, either. The couples in Hawaii also INSPIRED everyone. They weren’t afraid to say that their relationships were equal to heterosexuals’ relationships. Got me thinking that marriage was possible and that I might be able to do it.
    And now I am married to the man I love. Yes, it has been an ugly and frustrating procession towards marriage equality, but “nothing ventured; nothing gained.”
    Boies and Olson are arguing that it is a bi-partisan goal to allow all citizens to marry the person they love. And they will be arguing this from both ends of the political spectrum in front of a court that is pretty closely divided in either ideological camp. In what way is that not a dream scenario??

    If we lose, it would suck big time. But that doesn’t mean the end of the world as we know it. We could have federal civil union or D.P. legislation with full marriage rights instead, for one thing.

    Frankly, this piecemeal marriage state by state is precious little comfort. 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. I am supposed to be satisfied with THAT?
    Seriously, you want to trust the GLBT organizations who have pretty much bungled everything (lambda legal, excepted) to always know what’s best??
    All you guys who don’t want to ruffle the feathers of the establishment need to get out of the way or you just slow us down. It’s you who are “going to FUCK US”, as you so eloquently put it.

  • SM

    The Courage Campaign and helped put Obama in the White House with a grassroots campaign that was out of this world.

    If the Democrats can break through the racial divide in this country and put an African American in the White House. We can bring Marriage Equality to California. It may take some work, but it can be done~

  • mb00

    Yes & No.
    No because it can no longer affect the outcome of the Supreme Court.
    And Yes because it gives us the satisfaction of knowing that they thought once hearing their decision we’d just quietly go away, but instead we’ll continue to be a thorn on their sides until we can finally be treated equally.

  • JakiChan

    I gotta wonder – when has ANY minority had their rights put up to a vote? If we put black rights up to a vote in the 70s would they have passed? I doubt it. They want us to beg. They don’t want us to be angry. If we’re good little faggots they might give us Civil Unions. Well fuck that!

  • Ken

    @Qjersey: Can’t we do both? Fight in every supreme court, at every level AND tell our friends family and neighbors about out fight for equality. I am and I know others are. I have heard and seen others talking about LGBT rights BECAUSE of these lawsuits. Personally I am grateful to have people stepping up and challenging the system at all levels. It is a very costly and labor intensive process to file these suits and I applaud those who are getting it done. We (the LGBT community) seem to so easily be divided and critical of eachother. That is sometimes why the system is set up! To slow us down and wears us out. This article I feaal reflects that cancerous attitude. We should be fighting on at all fronts on all levels and supportive of all attempts to bring about Equality!

  • threshold

    I think we’re forgetting that the swing vote on the court, Anthony Kennedy, penned both of the landmark gay rights rulings to date, Romer v. Evans and Lawrence v. Texas.

    I also wouldn’t be surprised to see one of the conservative justices uphold marriage rights. There are very strong parallels in this case and other acclaimed decisions such as Loving v. Virginia. I mean, we’ll never get the support of Scalia, but Alito and especially Roberts are untested on gay issues. Who knows they might come through, the case for gay marriage is not nearly as nebulous as abortion rights, and rests squarely upon the equal protection clause of the 14th amendment.

    That said, the court is not immune from the political climate, which will likely be much more favorable around 2012-2016. Sometime in that range I’d expect most Americans to support gay marriage in a yes/no vote about about 12 states to have legalized gay marriage. If you look out to 2020 it becomes and open and shut case with only the South being the holdout, although reversing all of the anti-gay constitutional amendments will be some challenge.

  • InExile

    This case is different because it deals with the question “Why cannot other gay couples get married when there is already 18,000 couples married?” The fact that only part of a minority group can be married while all others of the same group cannot places the government on shaky ground. The attorney’s who took this case must see a path to victory even with our right wing Supreme Court.

  • Jaroslaw

    This is truly tiresome. Equality is not the hard of a concept – and as others have said in other posts,etc.: the state cannot defend a legitimate interest in denying SSM. eg. the state can for public good require driver licenses, make people pass a vision test etc. There is no such public good at risk here.

    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.

  • MyTwoCents

    To every “EVERY major LGBT organization” – You are NOT the elected official representatives of all of us.

    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.

  • The Realist

    @James: Those statements by Obama fly in the face of the questionnaire he answered when running for Il. State Senate and also the Principles of the Universal Church of Christ to which he belonged. Obama is either a panderer or a liar. Neither of these is desireable.

    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.

  • Jaroslaw

    #57 – I don’t know why his written answers to a questionnaire that you reference haven’t been brought up more. I’m glad they weren’t prior to the campaign because all the alternatives were worse, but if Obama thinks “maneuvering & waffling” like this is going to get him a second he’s mistaken. Nothing against him personally, all politicians have to walk the tightrope.

    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.

  • Jaroslaw

    sorry – meant to say “if things AREN’T considerably better”

  • The Realist

    I also think that IF the Supremes strike down the suit, there is a chance that it will force Congress to act to repeal DOMA and DADT and we can all get on with our lives.

  • dgz

    @The Realist: well, no. it will negate DOMA, no legislative action necessary.

  • Cam

    Gee, what a shock, the same people that have always stood in the way of lawsuits for our rights…you know, the same suits that brought us the right to marry in four other states aren’t happy.

    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.

  • Andrew

    When Loving was decided, 16 states still had and enforced laws against interracial marriage. There were multiple attempts to eliminate this in Congress in the 20th century. All the Congressional attempts to amend and allow interracial marriage failed. It took SCOTUS to finally put the nail in the coffin.

    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.

  • Brian Miller

    The reaction against the lawsuit strikes me as knee-jerk.

    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.

  • Sam

    @Jeffrey: “The couples in Hawaii also INSPIRED everyone.”

    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.

  • schlukitz


    “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.

  • Sam

    @Cam: “Gee, what a shock, the same people that have always stood in the way of lawsuits for our rights…you know, the same suits that brought us the right to marry in four other states aren’t happy.”

    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.

  • Andrew

    Some interesting, and somewhat alarming, commentary from a law professor at U. Penn:

    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.

  • Sam

    @Andrew: “When Loving was decided, 16 states still had and enforced laws against interracial marriage.”

    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.

  • Andrew

    We’re not really in disagreement. I was just pointing out that a full third of the states still had anti-m laws on the books and that there had been multiple failed legislative attempts over 50+ years. So it could still be a long hard slog to win hearts and minds and win at the ballot box. That said, the more I read about the current suit (Olson/Boies), the more I believe it’s not the best approach.

  • PKintheHouse

    @Sam: The couples who sued in Hawaii, Massachusetts, Vermont, Connecticut, California, and Iowa did not lose at all in court. Each of these state supreme courts, some liberal and some conservative, has ruled that as a matter of equal protection law gays must be allowed to marry.

    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.

  • Brian Miller


    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.

  • Jaroslaw

    Well, let’s not overlook something really significant – Constitutions usually exist to PROTECT citizens, outline RIGHTS etc.

    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.

  • David Hauslaib

    @Brian Miller: Actually, GLAD is part of this statement, as is GLAAD (two As). There were so many gay organizations attached to it that we didn’t list them all.

  • Sam

    @PKintheHouse: “The couples who sued in Hawaii, Massachusetts, Vermont, Connecticut, California, and Iowa did not lose at all in court.”

    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.

  • Nick

    As Robbie the Robot (god rest his soul) would say: DANGER! DANGER AHEAD! THERE WILL BE A NEGATIVE RULING!

  • paulied

    A question to all the legal minds posting here: Does it not make more sense to challenge Prop 8 on a Full Faith and Credit Clause issue than a Equal Protection issue? The Full Faith and Credit Clause requires that all states respect the public acts, records, and judicial proceedings of other states. Isn’t this a more cut and dried legal issue?

  • Alec

    @paulied: Not really, I don’t think, because marriages usually don’t have to be recognized (although divorces, adoption and custody decrees, etc., do). I’m not entirely up on full faith and credit, but between DOMA and the judicial construction of the clause, I don’t think there’s much force behind the FF&C argument.

    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.

  • paulied

    @Alec: Then what is a marriage certificate if not a public record? And for that matter, shouldn’t the FF&C clause – not an amendment, but part of the original Constitution – render DOMA as a whole unconstitutional?

  • Sam

    @paulied: Should. But won’t, unless you get 5 SCOTUS justices to agree with you.

  • Alec

    @paulied: The Court has developed a test that mandates recognition of judgments but not other public acts. Public records is also, IIRC, a term of art relating to evidentiary issues (i.e., what records can be introduced in trials). But as I said, I’m not up on this area of the law.

    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.

  • Jaroslaw

    I’m not a lawyer, but hello guys! If you are married in Michigan and move to Ohio you are still married. You do not have to get remarried.

    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.

  • Jaroslaw

    (I was referring to of course SSM performed in the five states that are not recognized by the other states in the post above)

  • cymatic

    If you were filing a lawsuit in Federal court would you rather have David Bois and Ted Olson representing you or the guys from queerty? Hmmm….

  • Randy

    I am going to have to agree with some of you, watch them, but watch them from a supporting side. We keep saying it’s inevitable that we will have equal rights, so what does it matter if this fails. Yes it may set a negative precedent, but for how long. How long after the Supreme Court rules against us till the next case, how long until the younger generation gets old enough to vote, how much longer are we supposed to wait? Civil rights wars are not won state by state, they never have been. Major battles may be important, but are we really supposed to wait until Alabama, or Tennessee, decides that being Gay is ok before we are allowed to go to the Supreme Court? The same argument we are using against Prop 8 (that the majority cant decided the rights of the minority) works against the method of going slow and state by state. Some sates will never bow to the tide of humanity, even if we got down to 5 states that didn’t those five would fight even harder to stay different. The basic principles for our freedom is already out there, why are we trying to prove it over and over, we do not have equal rights or protections as provided for in the constitution. No matter how many cases go against us, that wont change, but for every case that goes against us another bigoted argument will be highlighted and countered, another few will decided that this is a pointless fight, and a precious fewer will realize they are not coming from a place of law but of fear and hate. So we should be cheering this odd couple on, we should be rallying behind there march on the supreme court, that way we can watch them closely, if it’s a trick it is already doomed to eventual failure.

  • yeson8won

    Already 30 states have amended their Constitutions to protect traditional marriage from redefinition to accommodate homosexuals.

    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

  • schlukitz


    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.

  • queertymissingthepointhere

    The fact that TED OLSON, who was so conservative Harry Reid blocked him from being put on the Supreme Court by Bush, is arguing FOR GAY MARRIAGE!!!! IS HUGE! Mention that more prominently Queerty!!!!!!

  • Flex

    I’m not going door to door to kiss ass, and ask permission from a bunch of strangers if they will grant me the right to get married, via a vote. They can lick my balls! However, I wish the best of luck to anyone who has the patience, compassion, and energy to anyone who is willing to arm wrestle votes from people.

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

  • Emily

    @Tony: obviously you were wrong in May of last year – care to comment?

  • Emily

    @Qjersey: Well it’s been over a year and victory is in hand – what you say now?

  • Emily

    @queertymissingthepointhere: You were exactly correct. Apparently Queertv is not the place to go for sharp analysis.

  • Sam

    @Emily: Obviously you can’t read. Tony said “The Supreme Court as it stands will not rule favorably.” This case hasn’t gotten anywhere near SCOTUS yet and, even with two new Obama-appointed justices – we’d probably still lose there.

    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?

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