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.

Ben in Oakland

May 27th, 2009

I am highly suspicious of this move. and I also want to know who is paying for this? Are Olson and Boies doing this pro bono? How is the “American Foundation for Equal Rights” funded?


May 27th, 2009

“Unlike the caricature painted by our opponents, there really has never been a behind-the-scenes entity to dictate a coordinated strategy.”

Ok I’m going to ask a really stupid question. Conservatives love to cite the book “After the Ball” as proof that we have an organized agenda. Is there any legitimacy to their claim? I don’t think there is, because no gay blog (or person, for that matter) that I know of acknowledges this book and it’s not even in print anymore, but I was just curious.

Jason Echols

May 27th, 2009

I’m not getting this. If there are questions, shouldn’t they be directed to Chad Griffin? Why are we not seeing Chad mentioned in all of this?

Robert Goodman

May 27th, 2009

Taking our case to the Federal level is exactly the right thing to do now. Our time has come. In 1967, virtually no one in the African-American community thought that Loving vs. Virginia would win (and secure national marriage equality for interacial couples); but it did. Also, no major civil rights victory has ever been achieved in this country via ballot initiative. On the contrary, it has been the courts (and the legislative branch) that have ALWAYS led the way. If African-Americans had relied on ballot initiatives to secure their feedom and equality, they would still be slaves and/or living under Jim Crow laws.

Lindoro Almaviva

May 27th, 2009

very interesting topic. I am not sure i agree with it 100% though.

I see the wisdom of the words, I do. But at the same time I look in history and see how progress has been made when 2 different approaches are taken together. I think that we need both, a concentrated effort in the ballot box, but also a strategy at the courts.

I remember when the AIDS epidemic was new. i was much too young but in latter reading, i remember how many people thought that the government was going to bring an effort to understand what was going on. When it didn’t happen, organizations like ACT UP brought an element of anger and force into the issue.

Now, I know that at the time, these organizations were seen as radical movements that hurt the plead more than it helped. The reality of the matter is that it was through both efforts, the anger of demanding what we knew was right, and the softer side of political maneuvering and changing minds what brought change to the situation.

I believe that in this situation we need both elements as well. A movement that will look for convincing arguments and changing minds with reasonable arguments, but also a militant side that shows that we are demanding what is constitutionally ours and that we will not back down until we get it.

If there was something that the whole Prop 8 hoopla taught me was that one side alone will not win the battle. Look at the sensible campaign that was run. It was, for all intends and purposes one of the best campaigns in terms of arguments and reaching out? What kind of results did that approach alone gave us?

Please understand that I do not think that the campaign was perfect. I personally saw it as apologist; and I am one that never apologize for wanting and demanding what I believe i am entitled to. I wonder how much the people in this country will see a soft campaign as apologizing for wanting “more rights”. I wonder how much something like this alone will make us look weak.

I guess my aggressive personality is coming through, so I will be the first one to admit that I believe in striking back. I believe that the LDS should see a bigger backlash and that any time any of these groups calls us intolerant, their own intolerance should be showed to them and then remind them that you reap what you sow. I believe that this is no time for us to be just soft. I think both sides should continue their fight, albeit I do believe that a better partnership could and should be attained.

Just my opinion…


May 27th, 2009

I’m still trying to figure out why now, at this very moment in time, we’re so afraid a SCOTUS ruling will set us back. Sure, we could lose some face if SCOTUS does the worst thing they can to us (punt it back to the states), but technically we have nothing to lose. If SCOTUS sets a precedent against overturning states DOMA laws, then we’ve lost nothing and gained nothing.


May 27th, 2009

Such an attempt needs to go forward. In 1857 Chief Justice Taney thought that he solved the succession and slavery questions with the Dred Scott decision. He didn’t.


May 27th, 2009


I am not sure that Olsen’s lawsuit in the end is going to be about marriage equality. I suspect that the federal question is going to be an equal protection question on a more general level.

What Olsen seems to be saying is that a fundamental right (in this case the right to marry, but the specificity of the right isn’t all that important to the case) was enjoyed by a minority group. That right was then taken away from the minority, but not the majority, by a simple vote. The question seems to be: Does the majority have the right to take a right away from a minority?

In most of the other state cases, constitutional ammendments were passed before marriage equality was attained. Therefore, same sex couples were denied marriage equality, but it wasn’t taken away from them.

It’s an interesting question and worthy of federal review. It also really has little to do with marriage equality generally and at this point would only apply to states that had granted marriage equality and then tried to take it away (which I believe only applies to California).

Timothy Kincaid

May 27th, 2009

Ok I’m going to ask a really stupid question. Conservatives love to cite the book “After the Ball” as proof that we have an organized agenda. Is there any legitimacy to their claim?


No, there is no legitimacy. We do not have a centralized advocacy movement, though of course lobbying groups do work with each other.

As for After the Ball, I read it years ago and thought it was interesting and worth considering. But as far as I know, it has not been influential on either the thinking or organization of any gay rights groups.


May 27th, 2009

Thanks for explaining, Timothy.

CB James

May 27th, 2009

I understand both the pro and con arguments here. I just want to say that the LGBT organizations are largely the same ones that lost the battle over Prop. 8. In fact, didn’t one of them actually have an anti-prop 8 letter from Obama in their hands that they did not release or use in any way even though they had express permission from Obama to do so?

I think it’s time to trust ourselves instead of the organizations.


May 27th, 2009

I just saw Ted Olsen and his law partner on Larry King. I think that their sincerity was impressive. Even if the Federal Court refuses to hear the case the fact that someone such as Ted Olsen attempting to take the issue into the Federal Court system is impressive … least to myself.


May 27th, 2009

I reluctantly agree that this is not the time to go forward with this case. It took twenty years of preparation before gun rights advocates were ready to take a case before the SCOTUS, and that was with something already in the Bill Of Rights!! Twenty years of legal articles in prestigious journals, getting politicians in place and changing public perceptions.

I don’t want to wait twenty years…but there is work to be done before we make this move. I am a transgendered woman still married to my wife…(and I own guns). I want all my GLBT brothers and sisters to be able to have the same choices as I have available.

Rick in Kansas

May 27th, 2009

For me, this is the case which should have been filed in opposition to the passage of Prop 8 in the first place rather than the challenges filed in California. The notion that it could be overturned as a revision was doomed from the start. We’ve followed the “advice” of these organizatons as they botched the campaign against the proposition in the first place and then as they offered up a legal argument that was destined to fail. They don’t have my trust any longer.

We already have our disatrous precedent in the federal courts with the rejection for lack of a substantial federal question in the case of Baker v Nelson from 1972, this case cannot possibly be any worse for us than that. So, while there have been some successes in the state by state strategy, there have been some set backs as well and this one was a big one. For those of us living in states like Kansas, that are hovering near the bottom of that state by state list, bolder moves are need than what is being offered by supposedly national organizations that aren’t afraid to hit me up for my financial support but see my rights here as rather low on their list of priorities. To me, this is the right case at the right time. Though some may say that the make up of the Court may not be right yet, the question is when will it ever be? Let’s take our chances when we have as good of one as we might ever get.

Jutta Zalud

May 28th, 2009

“Conservatives love to cite the book “After the Ball” as proof that we have an organized agenda. … no gay blog (or person, for that matter) that I know of acknowledges this book …”

I find revealing, which books are mentioned in the “Customers who bought this also bought …” section at the entry of “After the Ball” – 20 “pages” i.e. ca. 100 titles and the majority anti-gay (at least on the first pages, I have not checked all ca 100 titles). Looks as if this book has mainly be bought by people who want to fight against gay rights.

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