A (Federal) Case for Marriage

As olson and boies see it, marriage has been a right enshrined under the U.S. Constitution ever since the Loving v. Virginia ruling in 1967, which upheld the rights of interracial couples. Two more recent cases -- Lawrence v. Texas , which struck down sodomy laws in 2003, and Romer v. Evans , a 1996 U.S. Supreme Court ruling that rejected a Colorado antigay measure -- established the notion that discrimination based on sexual orientation is unconstitutional.

Filing the suit in California brings other advantages, the attorneys say. Since California recognizes domestic partnerships, the precedent for legal validation of same-sex relationships has already been set. It helps too that the state supreme court recognized same-sex marriage before Prop. 8 passed. The estimated 18,000 same-sex couples whose marriages remain valid despite the ballot measure present a manifest anomaly.

On these merits, many legal scholars agree with Olson and Boies. "There's no reasonable argument against marriage equality," says Erwin Chemerinsky, founding dean of the law school at the University of California, Irvine, and a noted constitutional expert. "The arguments are either bigoted or silly."

But Chemerinsky also echoes some of the concerns voiced by many of the gay activists who have fought hard -- and won -- the very state-marriage battles that have created the momentum Olson says his lawsuit needs. They argue that a loss in the Supreme Court could set back marriage equality for a generation, much in the same way that an unfavorable ruling in the 1986 case Bowers v. Hardwick kept sodomy laws on the books in many states for 17 more years. It's also unknown how an unfavorable ruling could affect future state litigation and existing legal protections for gays and lesbians.

Given the risk, organizations like Lambda Legal, the National Center for Lesbian Rights, and the Human Rights Campaign have all warned against the potential danger of federal lawsuits. "Our position has been that a state-based strategy is very important, and that there are important risks in asking the Supreme Court at this time to provide marriage equality to same-sex couples nationwide," says Jennifer Pizer, Lambda's senior counsel and marriage project director. "That has been our view in the recent past, and it remains our view today."

Michael Dorf, a constitutional law expert and a Cornell University law professor, is similarly wary. "I think the [arguments] are very strong, but I've thought that for a long time," he says. "The fact that a liberal law professor with nothing to lose says, 'Of course there's a constitutional argument for same-sex marriage,' is entirely predictable. The question is how it will play out in federal court."