The Gay Marriage debate is one of the most controversial wedge issues found in politics today. The gay marriage debate wedges conservatives against liberals and the religious against the more secular members of society. But battles over gay marriage are not just being fought between those for and against gay marriage itself. There is currently a battle waging within groups that actively advocate for gay marriage. The battle is simple: should gay marriage be instituted nationwide quickly or should it be instituted slowly state by state. This is the battle within the LGBT Community.

The story begins in California dealing with the aftermath of California voters overwhelmingly passing Proposition 8 last November. Proposition 8 was an initiative to amend the California State Constitution to define marriage solely to be between a man and a woman thereby banning gay marriage. The Proposition was put on the ballot after the California Supreme Court ruled that banning gay marriage was unconstitutional.

In May of this year, a lawsuit was filed in Federal Court claiming that Proposition 8 violated the due process clause and the equal protection clause of the Federal Constitution. The lawsuit is Perry v. Schwarzenegger.The suit was filed on behalf of two gay couples. The couples are represented by Theodore Olson and David Boies who notably faced off against each other in the case of Bush v. Gore before the United States Supreme Court. Once rivals, the two have teamed up to overturn Proposition 8 as unconstitutional.

Their goal is to have the United States Supreme Court rule that banning gay marriage violates the Federal Constitution. Olsen, who defended George Bush before the Supreme Court and who labels himself a conservative, states that the issue is a matter of civil rights and dignity. If successful, the case will forever answer the question of whether the ban on gay marriage is Constitutional or not.

While Olsen and Boies’ motives may be noble, many proponents of gay marriage are not pleased with their efforts. Many gay rights groups including the Lambda Legal, Gay and Lesbian Advocates & Defenders and the National Center for Lesbian Rights oppose the filing of a federal case in an attempt to quickly bring change to the status of gay couples across the Country. They cite to the Supreme Court’s history of failing to get far ahead of public opinion or the law of the majority of states across the Country as evidence that seeking a Supreme Court ruling may have terrible consequences. They are worried that trying to change things quickly will cause a rush of judgment by the Supreme Court that will bring a ruling that will be a difficult obstacle for gay rights advocates to overcome in the future.

Instead, many gay rights groups advocate a slower and more methodical approach to change public opinion and eventually change the law. They argue that the proponents of gay marriage should be patient and fight the battle state by state; concentrating on states where public opinion is already in their favor and where they have the best chance of winning. These groups believe that this approach will slowly change the law while not creating a backlash against gay rights as seen in California.

 

Both approaches have merit. If this truly is an issue of civil rights then going to Federal Court to have the Supreme Court rule on this issue makes sense. However, the opponents of this approach also make good points in terms of public opinion. If the Supreme Court makes a ruling, there will be backlash either way, most likely harming the goals of gay rights advocates. The best approach is most likely a combination of the two.

 

Dena Bez is a licensed California Attorney whose practice focuses on family law including divorce, custody disputes, domestic partnership issues and estate planning.

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