Famed litigators David Boies and Ted Olson recently filed a lawsuit in federal court on behalf of California residents. The suit asserts that California Proposition 8, which bans same-sex marriage, violates the constitution. On Thursday, the National Center for Lesbian Rights, Lambda Legal and the ACLU filed a brief supporting the plaintiffs' argument that the law is unconstitutional.
Many GLBT rights groups oppose the litigation on the grounds that federal courts are not the best venue to decide this issue, given the current composition of the Supreme Court, the undeveloped status of federal court case law related to sexual orientation discrimination, the strong public opposition to same-sex marriage, and the weak status of sexual orientation within federal antidiscrimination law.
Because of the risks associated in the federal courts, many GLBT advocates prefer using state courts and legislatures to accomplish change in this area. Indeed, before the Supreme Court gets this case (if at all), voters in California might have already repealed Proposition 8, which would make the case "moot."
Despite their own opposition to the federal litigation strategy, these three leading GLBT groups filed a brief in support of the plaintiffs because they have accepted the inevitable nature of the suit. Matt Coles, an attorney for the ACLU, explained the difficulties raised by the suit: "Just because something is unjust doesn't mean you'll automatically get a court order. . . .You have to lay the legal and political groundwork." The groups, nevertheless, reluctantly filed supporting arguments.
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