Who’s In Charge?: The Struggle for Control of Marriage Litigation

Access to marriage for same-sex couples has been a prominent battle in the culture wars of the last decade.  Yet even as the main controversy rages, a new struggle has arisen.  At issue is control of the litigation that has largely propelled the drive for marriage thus far.  The division highlights  important questions about identity politics and litigation as a tool for social change.

For many years, major lesbian/gay organizations and their allies largely controlled marriage litigation.  These organizations crafted and executed a strategy, the main point of which was to litigate marriage questions in state courts based solely on state constitutional grounds.  None of the cases raised any federal questions.  The organizations sought to create a series of supportive state court rulings that were immune to federal review, saving a federal challenge for a later date, perhaps before a more favorable Supreme Court.

All this changed in May when Ted Olson and David Boies filed a case in federal court challenging California’s proposition 8 under the federal constitution.   

Proof of the Conservative Case for Same-Sex Marriage?

Access to marriage for same-sex couples has been a political and legal hot topic for quite some time now.  Some say it lies at the heart of the culture wars. Others believe that the presence of referenda barring access to marriage on many state ballots helped George W. Bush win his second term in office.  In any event, the issue has certainly been in the spotlight this past week.

There have been three notable developments that have kept marriage on the front pages:

–The California Supreme Court upheld Proposition 8, which amended the California Constitution, effectively overruling the Court’s earlier decision allowing access to marriage.   (I blogged about this last week.)

–Two high profile lawyers, David Boies and Ted Olson,  announced the filing of a federal case challenging the very same Proposition 8.   (All of the preceding marriage litigation has been studiously confined to state constitutional challenges brought in state court.)

–Former vice-president Dick Cheney, speaking before the National Press Club,  endorsed the right of same-sex couples to marry.

This confluence of events made me stop and think.

Proposition 8: Shifting Perspectives

What a difference three months can make.

The case challenging the constitutionality of Proposition 8 was argued on March 5–just a bit less than three months ago.   At the time, the California marriage opinion stood as one of the most important milestones in the ongoing struggles for access to marriage for lesbian and gay couples.  As the news coverage from that time reflects, the argument did not go particularly well for those challenging the amendment.    The possibility of a loss in the case loomed very large.

The California Supreme Court announced its decision upholding Proposition 8 today.  It was what the advocates had feared: a loss.   And yet, in the grand scheme of things it loomed far less large than it had merely three months ago.

I do not mean to minimize the loss for those in California, of course.   And losing in California is still a big loss for marriage advocates–most populous state and all that–but the future hardly looks as bleak as it seemed it might.