Thursday, May 28, 2009
Gay leaders counsel against federal suits
A split among pro-gay groups occurred Wednesday as a coalition of nine prominent national groups cautioned allies against going to federal courts to challenge California's Proposition 8, though two couples already have filed a lawsuit challenging the amendment as a violation of the U.S. Constitution.
Instead, the seven-page document, called "Make change, not lawsuits," said appeals to federal courts are premature before a grass-roots effort "to change hearts and minds in all 50 states." It said gay rights groups should push for gay marriage through selected state courts and legislatures.
"We need to start with states where we have the best odds of winning," said the coalition, headed by the American Civil Liberties Union, before approaching Congress and the president.
"When we've won in a critical mass of states and have basic support in federal law and policy, we can turn to the federal courts and ask that the U.S. government end any remaining discrimination against LGBT (lesbian, gay, bi-sexual, transgendered) people," the document said.
In addition to the ACLU, the signers are the National Gay and Lesbian Task Force, the Gay & Lesbian Alliance Against Defamation, Freedom to Marry, the Equality Federation, the National Center for Lesbian Rights, Lambda Legal, the Human Rights Campaign and the Gay and Lesbian Advocates and Defenders.
It added: "Pushing the federal government with multiple lawsuits before we have a critical mass of states recognizing same-sex relationships or suing in states where the courts aren't ready is likely to lead to bad rulings ... . The U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."
Tuesday's 6-1 ruling by the California Supreme Court upholding Proposition 8, which defined marriage as a union between a man and a woman, was a sign that "we need to return to the state ballot box to win marriage back."
But others don't want to wait. A lawsuit was filed Friday in U.S. District Court in Los Angeles on behalf of two gay men and two lesbians, arguing that Proposition 8 violates federal guarantees of equal protection under the law and substantive due process.
The lawsuit was first reported Tuesday, and on Wednesday, lawyers Theodore B. Olson and David Boies - the two men who represented opposing sides in the 2000 Bush v. Gore Florida election case - announced their clients' challenge.
"For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy," Mr. Olson told reporters at a Los Angeles press conference.
Paul Cates, a director for the ACLU's Lesbian Gay Bisexual Transgender & AIDS Project, said the document has had multiple versions and was not a specific response to the Olson-Boies lawsuit.
"LGBT groups believe that was an ill-advised lawsuit," he added. "We are saying you have to be careful about what court battles you pick. We and LGBT groups have never in 30 years gone to federal court over this."
The strategy statement aroused surprised reactions from pro-family leaders who pointed out that gay organizations and the ACLU hadn't seemed queasy about lawsuits before.
"Gee, I wish the gay rights groups had said this before Iowa and Massachusetts," said Maggie Gallagher, president of the National Organization for Marriage, referring to rulings in both state supreme courts allowing gay marriage as a result of lawsuits.
Pointing out that gay advocates used lawsuits in Connecticut and California, "It seems like a little late to be telling the gay movement that lawsuits are not the way to make change," she said.
But Andrew Pugno, chief counsel for the Sacramento-based ProtectMarriage.com, said Wednesday's statement was not surprising.
"Advocates for same-sex marriage have avoided ending up in federal courts, where the current law says there is no federal right to same-sex marriage," he said.