Legal groups warn: don't rush into lawsuits

This month's marriage decision in California was a watershed moment in the fight for marriage equality, and LGBT advocates are working to ensure that members of the community do not jeopardize that win with ill-timed lawsuits. When the ruling goes into effect - on June 17, according to the California Office of Vital Records - California will become the first state in the country to allow same-sex couples from anywhere in the United States to be legally married within its borders (Massachusetts law prohibits same-sex couples from most other states from marrying here). Shannon Price Minter, legal director for the National Center for Lesbian Rights (NCLR) and one of the lead attorneys on the marriage suit, said advocates hope to persuade those couples to think twice before going to court to try to force their home state or the federal government to recognize their marriage.

"We are just putting the finishing touches on a national advisory that will be going out from all of the LGBT legal groups and Freedom to Marry ... strongly urging people not to rush into court, to seek recognition of marriages from California or Massachusetts or Canada, and just to let people know that we do have a very strong strategy. We want to let everyone get on board with the plan, which is to bring the right cases at the right time in the right courts," said Minter.

Even before the win in California advocates had worked to dissuade people from filing suits that were likely to fail. In most cases Minter said people agreed to abandon their plans for a suit once advocates explained the danger of creating bad precedent, but not everyone was dissuaded. Minter said NCLR tried to stop straight attorney Ellis Paul, who died in 2006, from filing challenges to the federal Defense of Marriage Act in federal court in Florida in 2004. Paul pressed on, and in 2005 a federal court ruled that two women married in Massachusetts had no right to have their marriage recognized in their home state of Florida.

"[The rulings prompted by Paul's suits] were cited against us in all of the state marriage cases where we lost," said Minter.

Jon Davidson, legal director for Lambda Legal, said there have been other instances where LGBT advocates were unable to stop lawsuits that resulted in bad precedent. In 2006 a California couple, Arthur Smelt and Christopher Hammer, had their suit dismissed by a federal appeals court, which ruled that the couple could not challenge the federal marriage laws because they were not legally married. In 2004 advocates failed to stop an Arizona couple from demanding the right to marry from that state's Supreme Court. The court found that the couple had no right to marry under Arizona law, and Davidson said that decision has been cited against marriage equality advocates in other cases.

"I think sometimes people think they're doing a good thing, even if they lose, and they don't seem to really appreciate how creating bad precedent sets us back," said Davidson.

If past history is any indicator there may not be a massive rush to the courts after California's decision takes effect. Gary Buseck, legal director at Gay and Lesbian Advocates and Defenders (GLAD), said many predicted that there would be a flurry of lawsuits after couples began marrying in Massachusetts, particularly as those newly married couples began to file their taxes and see the discrimination they face at the hands of the federal government. But those lawsuits never materialized.

"My own sense is I think the November 2004 election scared a lot of people. I think that election put a lot of people back on their heels a bit, and there was a collective sense that people were holding their breath to see what happens," said Buseck.

While ill-timed lawsuits by married couples could have a detrimental impact on the marriage fight, Courtney Joslin, a professor at the University of California-Davis School of Law and a former NCLR attorney, said that couples married in California will be a boon to advocates working to raise public support for marriage equality.

"A really important aspect is you're going to have more people in more states talking about these issues and people sharing with people what it meant to get married, the harms of not having their marriages recognized, and I think all of that is a positive thing," said Joslin.

Within the state Davidson said once the California ruling goes into effect the number of legally married same-sex couples in the United States is likely to skyrocket.

"Even if you just focus on the couples in California, California already has almost 50,000 couples who have registered as domestic partners. In Massachusetts there are a little over 10,000 same-sex couples who have married. So even if you're just talking about people in state you're likely to see a lot more marriages," said Davidson. He added that California's court, filled mostly with appointees of Republican governors, is considered an influential and moderate court, and its ruling will likely influence future marriage cases, such as GLAD's marriage suit in Connecticut and Lambda's in Iowa.

One potential monkey wrench in the marriage equality strategy is the motion filed by the anti-gay Alliance Defense Fund (ADF) to delay the implementation of the ruling until after California voters go to the polls in November and vote on a constitutional amendment to ban same-sex marriage. None of the advocates Bay Windows interviewed believes the state Supreme Court is likely to grant their request. Davidson said the court may issue a stay on the decision for 30 or 60 days until they respond to the ADF's motion for a rehearing, but he does not believe the court will grant it.

"They considered everything, and they could have issued a decision like the one in Massachusetts that said it would be effective in six months. They chose not to do that, and I don't think they're going to do it now," said Davidson.

Minter said despite the looming threat of the ballot initiative he believes California's ruling paves the way for even more victories down the line.
"I think this will really be the tipping point. I think we'll have enormous power for people who marry in California to go home and talk about their marriage to their families and coworkers, talk about why marriage is so important to them. And one in eight people in this country live in California. It's a huge state. ... It sets a tone for the whole country," said Minter.