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Posts for May, 2009

Are Lawsuits The Best Way To Go?

Jim Burroway

May 27th, 2009

I welcomed conservative Attorney Theodore Olson’s eagerness to try to overturn Prop 8 in federal court. But when I wrote that, I only addressed the fact that even conservatives are coming around to the idea that discrimination is fundamentally un-American.

What I didn’t address was the wisdom of trying to bring about change in the courts, especially when this particular tactic has almost no chance for success. I don’t think it’s wise to proceed in the courts. Eight prominent LGBT organizations agree:

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” (PDF: 70KB/3 pages). 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. The groups also revised “Make Change, Not Lawsuits” (PDF: 105KB/7 pages). which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits. [Hyperlinks added]

I tend to agree. The problem though is this: the LGBT movement has never been a monolith. Unlike the caricature painted by our opponents, there really has never been a behind-the-scenes entity to dictate a coordinated strategy. Advancement has been a messy process, at the ballot box, in the legislatures and in the courts.

But the whole reason that we have courts is they are the ones charged with dispensing justice for those with legitimate grievances. And when someone has a legitimate grievance, it’s hard to argue that they should not exercise their constitutional right to their day in court. This true whether that grievance is against negligent employer operating an unsafe work environment, a drunk driver whose recklessness resulted in the death of a loved one, or a state with discriminatory laws.

But I do think that the LGBT advocacy groups’ advice is what we need to heed now (PDF: 70KB/3 pages):

Rather than filing premature lawsuits, we need to talk to our friends, family and neighbors, and help them understand why denial of the freedom to marry is wrong. We need to build a vigorous, aggressive campaign to overturn Prop 8 and restore the freedom to marry in California. This is the moment to convince California and America that we should have the freedom to marry.

I hope Mr. Olson will consider deploying his considerable legal talents to help us win in other ways.