Scroll To Top

Too Much, Too Soon

Too Much, Too Soon


Matt Coles, director of the ACLU's LGBT Project, says a federal suit to overturn Proposition 8 puts too much in jeopardy.

After attorneys David Boies and Ted Olson announced Tuesday that they would file a federal suit seeking to overturn Proposition 8, several legal advocates and activists quickly voiced their opposition . Lambda Legal, Equality California, and the American Civil Liberties Union -- which have all had a hand in state-level efforts -- are just a few of the organizations that are openly opposed to the move. A total of nine organizations, most of them legal advocacy groups, issued a joint press release calling the suit "premature." Matt Coles, director of the ACLU's LGBT project, says the bold move may put more than marriage equality at risk.

Why is the ACLU opposed to bringing this case to a federal level at this point? Someone said to me earlier, "It's as if someone thinks you didn't already think about this," and I said, "The ACLU is pretty familiar with federal claims and federal courts. Of course we thought about it." Test cases are never a good idea. It was a test case that enshrined "separate but equal" in the United States Constitution for 58 years, to be undone by another test case. When you bring a test case, you've got to carefully weigh the odds you're risking. The way you build successful test litigation is in steps. You try to get the essential constitutional principles you need to get your case established.

Is it too early for this case? We are in the early stages of that process in the federal courts. This is an attempt to short-circuit the process, to go all the way to the end. Just putting aside who's in the current Supreme Court, when you try to short-circuit the process like that, it frequently does not come out well.

So we're hesitant about this going through the federal court because this is really getting ahead of the deliberative process of what gets you victories in test litigation. The second thing is they're risking a lot. I know that from the perspective of people in California it doesn't make sense. California has a lot of great laws protecting lesbian and gay parents. Wonderful law protecting lesbian and gay students, and wonderful laws protecting lesbian and gay workers. Most of the country doesn't have those things. The same election that passed Prop. 8 passed a ballot initiative in Arkansas that bans foster care and adoption by gay people. Now we're challenging that law in Arkansas court under the federal constitution.

If this case goes to the Supreme Court and the court says there's nothing particularly suspicious about discriminating against gay people and you can sustain discrimination with a hypothetical made-up reason as long as it's not crazy -- and that's a standard that several people on the court have already written that they think it should be used -- we will get torpedoed in parenting cases, we will get torpedoed in school cases, we will get torpedoed in employment cases. To us, that seems like a lot to risk for a long shot when we know that if we worked to establish more of the predicates, we could do this and not be taking such a big risk.

What sort of legal precedents should be accomplished first before even pursuing a lawsuit like this? We want to establish the principles that discrimination based on sexual orientation is presumptively or ordinarily unconstitutional. That's what the California supreme court said on the marriage cases. That's what the Connecticut supreme court said recently, as has the Iowa supreme court. But those cases were all state-level cases, so we need some federal cases saying the same thing. Oddly enough, we started to get those sort of statements under "don't ask, don't tell" cases. They are like step 2. 1 one was the Romer case in the Supreme Court and the Lawrence case in 2003. Step 2 is beginning to build a case on those principles in the federal courts, but we've still got a ways to go.

If this case somehow gets to the Supreme Court, could anything be done on the federal level? What would the consequences of losing this case be? We've been following the classic American pattern for change. You start in the progressive states, and then you make an attempt to slowly but surely build a national consensus that the change you're seeking is right. If you lose the ability to do that in the federal courts, you go back to the state courts, the job will be tougher because the state courts pay close attention to the U.S. Supreme Court says. But this is what we did after Bowers v. Hardwick in 1986. We went to state courts under state constitutions and attempted to get them to disagree with the kind of constitutional analysis the U.S. Supreme Court had used. It will be slower, but ultimately we will succeed because we'll be right. And then at some point you would have to go to the U.S. Supreme Court and ask it to overrule its decision. Now, you know Bowers v. Hardwick took 17 years. The segregation case Plessy v. Ferguson took 58 years. Any way you look at it, it takes a while.

Do I think we can ultimately convince the Supreme Court to rule that way? I do. I think we need to get more than the five or six states that have marriage now. We need more good rulings on marriage. We need more state legislation on marriage. How long do I think it'll take? Maybe 10 years.

Advocate Channel - The Pride StoreOut / Advocate Magazine - Fellow Travelers & Jamie Lee Curtis

From our Sponsors

Most Popular

Latest Stories

Michelle Garcia