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Activist grudges: Rights groups say ixnay on the awsuitlays

by Jeremy Hooper

groupsYesterday we learned that Theodore B. Olson and David Boies are forming an odd alliance in order to take Prop 8 to federal court. Today the ACLU, GLAD, GLAAD, NCLR, Lambda Legal, Equality Federation, Freedom To Marry, the Human Rights Campaign, and the National Gay and Lesbian Taskforce have formed their own, less circumspect alliance to say "Thanks but no thanks":

New York, May 27, 2009 — In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back. The groups released a new publication, “Why the ballot box and not the courts should be the next step on marriage in California.” This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage.
LGBT Organizations Warn that Lawsuits Could Set Back Progress on Marriage for Same-Sex Couples [FTM]

So will Olson and Boies (and all others) heed the call to stay home and watch "Judge Judy" rather than seek a path towards Justice Scalia? Well that we don't know. We do however know that we're so much as looking in the general direction of a court room for the foreseeable future, so as to avoid losing our good standing within the queer mafia. We're just a few far-right denunciations away from making Don!

**Associated documents:

Why the Ballot Box

Make Change Not Lawsuits-0509 Update

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Your thoughts

The first thing I questioned when I heard about this was their motives. They're lawyers, for heavens sakes, trained to take all sides of any arguments. They can put on a good front arguing for same sex marriage under the 14th Amendment (to my mind a no-brainer - what is there not to understand about equal protection) as if they really believe that the amendment does provide same sex marriage equal protection while they know that the window on having a US Supreme Court that would find that the 14th Amendment does NOT apply is starting to close and they'd better get a suit started now if they have any hope of heading marriage off at the pass.

A little paranoia can be a good thing.

Posted by: Necktie Knot | May 27, 2009 4:44:40 PM

The one hopeful in this lawsuit, is that iff it reaches the US Supreme Court, it will probably at least two to three years down the road. And, given that long lead time, it is possible that it might land at a time coinciding with the momentum of the tenth or twelfth state allowing same-sex marriage.

And, these guys claim to have studied the personalities that make up this court more than most, and believe that they have a real chance at winning.


Of course, I haven't met a lawyer yet, who didn't believe that (s)he was going to win every case he argued. And, quite frankly, I don't know if I would want to hire one who wasn't convinced that he would win. On the other hand, the attorneys have little (but their reputations) to lose in any of the cases that they argue, so it's a craps shoot any way you look at it.

Posted by: Dick Mills | May 27, 2009 4:53:54 PM

I think this is too risky now. When factoring in the current make up of the court, Obama's centrism and nebulous position on marriage equality, the ages of the conservative justices making it unlikely that Obama will be able to change the court's political slant, even if he gets a second term, and we run the very large risk of getting the gay Dredd Scott and setting ourselves back decades.

On top of that, homophobes often like to claim Obama agrees with them. That's nothing compared to the damage they'll be able to cause by being able to say the SCOTUS agrees with them.

Posted by: RainbowPhoenix | May 27, 2009 6:28:58 PM

With Scalia, Thomas and Roberts on the court, it may not be advisable to bring a federal challenge now. In Lawrence v. Texas, Scalia and Thomas both were on the dissenting side, and now Roberts will most likely be right there with them. But, on a slightly positive note, Lawrence did overturn the earlier Bowers ruling from 1986. It did take 17 years to do it though.

And the other positive is that by the time that this case reaches the Supreme Court, we might have a few more states in the plus column to back up our claim.

And, if this court does disagree on Prop H8, that doesn't mean that anything is lost. State level actions will still be just as effective as they are now.

One of the guys on Queerty mentioned that Scalia has made the statement (I hadn't heard it before today) that his belief was that same-sex marriage would probably become ubiquitous due simply to the enforcement of the full faith and credit clause of the US Constitution. That means that even in his mind, and bear in mind that he probably is the most homo-hostile of the justices, but even in his mind, DOMA won't withstand a judicial challenge.

Posted by: Dick Mills | May 28, 2009 12:53:36 AM

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