Theodore Olson and David Boies -- the prominent opposing lawyers in Bush v. Gore -- have filed a lawsuit in federal court that challenges California's prohibition of same-sex marriage. Their decision to file the lawsuit in federal court has very troubling and potentially disastrous implications for the attainment of GLBT rights.
Gay rights groups have generally condemned the litigators' decision to file a federal lawsuit, arguing that working with state legislatures and in state courts is the most promising path. I agree with this, and I have recently written an article on this same subject that is a forthcoming publication in the Connecticut Law Review (Connecticut recognizes same-sex marriage after a court ruling).
Over the last twenty years, the GLBT rights movement has made significant progress. The Supreme Court has issued two rulings that favor GLBT rights, but these decisions came after years of work in state and local governments, courts, and human rights commissions and with corporations. These efforts significantly altered the legal status quo with respect to sexual orientation.
GLBT groups learned an important lesson about "timing" and "venue" after suffering major defeats in the 1980s and early 1990s. After experiencing setbacks with the Supreme Court's blatantly homophobic ruling in Bowers v. Hardwick (which upheld Georgia's anti-sodomy law) and in several lower court cases challenging the military's discriminatory policy, GLBT activists embraced a strategy that pursued change at the local level and subsequently in federal courts. That strategy, culminating with rulings in Romer v. Evans and Lawrence v. Texas, proved highly successful.
Today, marriage equality advocates have pursued the same strategy, and they are currently achieving more success than any other progressive social movement. The only litigation in the federal system brought by seasoned GLBT rights activists center around benefits and employment, which are "safer" issues than marriage (especially in a poor economy). Given the level of public opposition to same-sex marriage, the current ideological composition of the Supreme Court, and the embryonic nature of same-sex marriage in the states, it is highly unlikely that the Supreme Court would rule in favor of plaintiffs claiming a constitutional right to same-sex marriage. Boies and Olson are playing with fire.
Despite the attendant risks of the lawsuit and the complaints from GLBT rights groups, Boies and Olson are determined to go all the way to the Supreme Court, if necessary. While the title of this blog entry may strike readers as being a bit melodramatic, I stand by it wholeheartedly. Bringing this litigation proves that Olson and Boies are either ignorant of the history of gay rights litigation, trying to sabotage same-sex marriage, or are arrogant heterosexuals who believe that they know more about this issue that experienced GLBT rights activists. Pick your poison, men.
PS: Another option: Boies and Olson are best friends with Justice Kennedy, and he told them that he is "down" with the cause!