Next Steps on Gay Marriage

When the California Supreme Court issued its decision validating Proposition 8, the voter initiative, backed by the religious right, Mormons included, that ended same sex marriage in California after 18,000 same sex couples married there, the Court tried to compromise by saying that those 18,000 same sex couples had the right to remain married in the eyes of the State.

That was the blunder that made a federal law suit possible, although perhaps not strategic.

Yesterday under the banner of American Foundation for Equal Rights, the stars of the 2000 presidential battle before the Supreme Court, Ted Olsen, representing Bush, and David Boies, representing Gore, teamed up to challenge the legal reasoning of the California decision under federal equal protection and due process theories.

The American Foundation for Equal Rights was founded to bring this lawsuit. Some in the LGBT community are wary, because they perceive the fight back in the hands of California voters, hoping to convince people voter by voter that the time has come to promote measures that encourage people to commit to each other in stable relationships that carry economic benefits. They are wary because they are afraid of any Supreme Court ruling on same sex marriage, even with the possible entry of Sonia Sotomayor as a new justice on the court. (The Times also reports that her views on abortion are not clear and shouldn't be assumed by the left as favorable.)

One has to ask whether celebrity lawyers from the left and the right are the folks who should be promoting a strategy to bring the issue of same sex marriage into the federal arena. Elaborate coalitions have been built among same sex advocates across state lines. As was illustrated in New Hampshire and Maine, where recognition of gay marriage is the result of legislation and not litigation, those alliances can effectively use the political system to change people's views.

Like the entire issue, the strategy might be falling across generational lines as well. Demographic analysis of Californians show one important factor: young people favor gay marriage across race and class lines. Older people do not. "First, the demographics favor marriage equality, with 18-to-29-year-olds strongly favoring gay marriage (59 percent to 37 percent). All other age groups oppose same-sex marriage, with opposition increasing the older one gets."

Older folks, lawyers included, are accustomed to using the courts to rectify wrongs. We will have to see whether these two celebrity lawyers are playing the Ann Coulter versus Bill Maher let's attract attention with our cleverness game or truly willing to spend the time and political capital necessary to bring the issue before the US Supreme Court and win.