From Gay.com

Don't Just Sue The Bastards! A Strategic Approach To Marriage

By Matthew A. Coles
Director, ACLU Lesbian & Gay Rights Project

August 30, 2004

A lot of people don't understand why the ACLU and other groups working on equality for LGBT people haven't just gone into court everywhere to get same-sex couples the ability to marry. But there are good reasons not to do that.

1. If we just sue in as many states as possible, we are likely to lose a lot of the cases.

To get the courts to strike down a law, you have to convince them that the law violates one of the specific rights in either the U.S. Constitution or the state's constitution. There are two possible legal arguments we can use in marriage cases: the "right to equal protection" and the "right to marry."

Equal protection: Under equal protection, courts most often strike down laws only if the court is "suspicious" of the government's reasons for discriminating. Typically, the courts are "suspicious" of discrimination based on race, sex and national origin. Odd as it may seem, the U.S. Supreme Court hasn't decided whether discrimination against gay people is suspicious, and neither have most state supreme courts. To make matters worse, most of the lower-court cases have said discrimination against gay people is not suspicious.

Under the rules, courts should rule that discrimination against gay people is suspicious. And even without that, we ought to be able to get courts to strike down the exclusion from marriage as "irrational." In courts that deal a lot with constitutional-equality cases, or courts that have generally been willing to listen to gay people, we should win. But the concepts are loose enough that there is room for a hostile or confused court to say that discrimination against gay people is not suspicious and the laws are not irrational. We're unlikely to win in courts like those until the Supreme Court either says anti-gay discrimination is suspicious or strikes the marriage exclusion down itself.

The right to marry: Neither the U.S. Constitution nor any state constitution explicitly mentions a constitutional right to marry. Most courts have said that the right to marry is understood to be part of the due-process clause that is found in the U.S. Constitution and most state constitutions. To decide what rights are implicitly protected by due process, courts typically look to see whether society has historically treated the right as something the government could not take away. The problem here is that our opponents will say that traditionally, we never had a right to marry. We have a good argument that a history of excluding some people from a right is not relevant. As with equality, we should do well in courts that hear a lot of due-process cases or courts that are truly open to claims from gay people. But again, the rules are loose enough that there is plenty of room for hostile or uncertain courts to rule against us.

Bottom line: If we bring marriage cases in courts that typically haven't been very protective of constitutional rights or that aren't familiar with sexual orientation issues, we are likely to lose a lot of the cases.

2. Even though same-sex couples can't marry now, we set ourselves back even further if we take cases and lose them.

It will take longer to get the right to marry in states where we lose: As society gets more used to same-sex couples being married, it will be easier to win cases in states that look iffy now. In a few years, the cases just won't seem like such a big jump. If we go ahead and lose cases in those states now, the courts will have to overrule themselves later to go our way. That means it is likely to take longer to get a good decision than it would have taken if we hadn't brought a case early on and lost it.

It may slow us down in better states: It will be easier for us to convince courts that we should win these cases if the first five to 10 courts to decide cases rule in our favor. That would be a big boost to our argument that the Constitution protects same-sex couples. State courts pay attention to what courts in other states do. If we run up a series of losses at the start, it will be harder to convince other courts.

It will hurt gay people on other issues: In cases about other issues, such as teachers, adoption or custody, we use the argument that the Constitution protects LGBT people from discrimination. Frequently, that argument helps to get courts to decide our way on nonconstitutional grounds. If we bring a marriage case in which a court says that the Constitution does not protect us, those arguments will be much harder to make successfully in cases about other things.

Bottom line: If we bring marriage cases and lose, it will take us longer to get good marriage decisions, and it may hurt us with other issues we bring to court.

3. The Supreme Court is unlikely to straighten this out soon.

The odds at the U.S. Supreme Court are just not that good right now. Four justices have said in writing that they do not think the Constitution requires states to marry same-sex couples. That means that to win we would have to get all of the five who haven't said anything publicly yet to side with us.

That isn't really so surprising. Contrary to popular belief, the U.S. Supreme Court is much more likely to strike down a state law once most other states have already changed their similar laws. For example, few states still had laws requiring 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 invalidated Texas' law last year.

We can change the law in many states without the Supreme Court. State courts don't have to follow the Supreme Court; they can rule that their state constitutions don't allow same-sex couples to be excluded from marriage. Both the Massachusetts decision and the Vermont decision are based on state constitutions.

But losing a case in the U.S. Supreme Court would have some serious downsides. Many state courts pay attention to what the U.S. Supreme Court says about constitutionality. It will be much harder for us to get state courts to strike down laws excluding same-sex couples from marriage if the U.S. Supreme Court has said they are constitutional.

Moreover, even after we have convinced most states to change their laws and stop excluding same-sex couples from marriage, to get marriage for same-sex couples everywhere, we'll eventually need to have the federal courts insist that the remaining states can't refuse to recognize same-sex marriages. Some states will never do that on their own. But it will take us a lot longer to get a good Supreme Court decision if the Court has to overrule itself. Let's not forget, it took 17 years to undo Bowers v. Hardwick. And that was fast for the Supreme Court.

Bottom line: The best way to win the marriage for same-sex couples is to win in as many states as we can before we head to the Supreme Court.

Right now, poorly thought-out lawsuits stand to do far more harm than good to the LGBT community. We must be smart about when, where and how we file lawsuits demanding marriage equality. Rash, badly conceived lawsuits could mean that the couples in our community who desperately need the protections marriage would grant them end up having to wait for many more years. Those families deserve nothing less than a considered, careful approach.