Good As You

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.

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.

http://apnews.myway.com/article/20090527/D98EO6SO0.html

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.

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.

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.