More On The "Don't Sue" Memo

Many of you were puzzled or angered by yesterday's joint statement from a broad coalition of LGBT groups who are asking that out-of-state gays that marry in California not return to their home states and begin filing lawsuits requesting recognition. Today's Los Angeles Times sheds some light on the story.

The memo cautioned that the U.S. Supreme Court has traditionally refused to embrace major social change until many states have already acted and that the battle for marriage must be orchestrated strategically, state by state, court by court. "Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer," the memo said.

Legal experts said the statement appeared to be an effort by groups who have successfully fought for gay marriage in California to maintain control of the litigation and reflected a fear that much of the rest of the country is not yet ready to embrace marriage for gay men and lesbians.

The memo "is a stark recognition of how their efforts have fared in the rest of the country any time the issue has been taken up in the ballot box," said John Eastman, dean of the Chapman University School of Law. "It is a tactical call that they are not quite ready yet in other states and not even in California to deal with the federal issue."

Twenty-seven states have passed constitutional amendments banning gay marriage, and only the high courts of California and Massachusetts have approved it. A ballot measure to reinstate California's marriage ban is headed for the November ballot.

"Eventually the U.S. Supreme Court is going to have to rule on whether states have to recognize same-sex marriages from Massachusetts and California," said Duke University law professor Erwin Chemerinsky. "What they want is to postpone that as long as possible because attitudes are changing quickly, and the more marriage equality gets entrenched, the more it is going to be widely accepted."

If the U.S. Supreme Court considered the federal Defense of Marriage Act, which permits states to refuse to recognize same-sex marriage in other states, the current court would likely split 5 to 4, with Justice Anthony M. Kennedy being an unpredictable swing vote, some scholars believe.

Gay rights groups aren't ready yet to take that risk.

Jon W. Davidson, legal director of Lambda Legal, called the joint statement "unprecedented," particularly since it came from so many groups. The memorandum says marriage rights should be tackled first in state courts, and only in states with courts "that may be ready to do the right thing." Marriage cases are pending before the high courts in Iowa and Connecticut, and gay rights groups are hoping the legislatures of New York and New Jersey will eventually remove bans on gay marriage.

Advocacy groups were largely successful in discouraging lawsuits by couples who wed in Massachusetts and then sought to have their marriages recognized elsewhere. One same-sex couple from Massachusetts filed suit in Florida and lost. Now Florida voters are being asked to amend the state constitution to limit marriage to opposite-sex couples.

Unlike Massachusetts, California has no residency requirements for couples wishing to wed, and tens of thousands of same-sex couples are expected to travel to the state to marry. Experts believe that at least some will return home and bring legal actions.

Asked whether the memo was likely to prevent lawsuits, Davidson said: "I guess we'll just have to see whether it is successful or not." The statement said that "early and unnecessary" court losses over marriage rights in Arizona and Indiana "hurt our other cases." Courts in New York, Washington state and Maryland narrowly rejected same-sex marriage and adopted some of the "contorted reasoning" from those decisions, the memo said.

"Because so far, more marriage cases have been lost than won, taking on a principled but long-shot case and racking up more losses now just makes it harder to convince other courts and legislatures," the memo said.

Mathew Staver, found of Liberty Counsel, which opposes same-sex marriage, predicted that once weddings start in California, the groups "won't be able to control the agenda anymore and there will be somebody, somewhere, not associated with the normal groups, that will file suit with the federal government."

Hoping to forestall such lawsuits, the advocacy groups promised that in a few years, same-sex marriage "won't seem like such a big jump" for courts and legislatures. In the meantime, the groups warned that court losses in marriage cases could reverberate into employment, adoption and custody law for gay people.

Instead of suing, same-sex couples should work against the California anti-gay marriage ballot measure and promote marriage rights in conversations with friends, co-workers, neighbors and employers, the statement said. "With the victories in Massachusetts and California, we should be able to win marriage more quickly in other states," the statement said. "But we have to lay the groundwork."

This make perfect sense to me.