Attorney's no longer in the limelight wanting to make a comeback have sued the State of California in federal court to overturn Prop 8 (previous story).
In 2006 a three-judge panel with the 9th U.S. Circuit Court of Appeals tossed out a LGBTI case, saying the federal judiciary should stay out of it and leave such issues to the states. Even influential gay rights groups such as Equality California opposed that lawsuit. Equality California asked the appellate court to throw out the case without reaching its merit. In its ruling, the court also said the couple did not have legal standing to sue under federal law.
Historically, the U.S. Supreme Court does not get too far ahead of either public opinion or the law in the majority of states (in which case same-sex marriage is overwhelmingly illegal).
Nine gay and civil liberties organizations - including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal - said "even the strongest gay-rights decision the court has issued - the Lawrence v. Texas case striking down laws against intimacy for gay couples - explicitly commented that it was not saying anything about formal recognition of same-sex relationships."
SPECIAL NOTE: Credit to the Kentucky Supreme Court who struck down sodomy laws over 10 years before the U.S. Supreme Court heard the Lawrence v. Texas case (2003). The Kentucky Supreme Court struck down laws against intimacy for gay couples back in 1992 (Wasson v. the Commonwealth of Kentucky).
This is what prominent LGBTI organizations are saying about the new federal lawsuit:
- Evan Wolfson of the GLBT equality group Freedom to Marry sent out a May 27 press release that stated, "In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back."
- Law professor John Oakley of the University of California called the suit "a silly and rash act."
- "It's an enormous intellectual exercise against the biggest legal opponent in the country—the United States government," said Lambda Legal's Jennifer Pizer. A similar challenge to federal gay marriage law was brought in Massachusetts in March by the Gay and Lesbian Advocates and Defenders, but Pizer said the Boston group is being supported by big law firms.
- “Successful change involves building blocks,” Matt Coles, director of ACLU's LGBT project, told the Wall Street Journal's law blog. “You build constitutional principles alongside efforts at the societal and legislative levels. They're jumping over the process and going straight to the end. From where we sit, this is a very high-risk proposition.”
- “In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent,” Shannon Minter, legal director of National Center for Lesbian Rights, told the AP.