Should Every Same-Sex Couple Who Wants To Marry Sue For Their Rights?

Now that it seems like the Supreme Court is paving a way for same-sex marriage, should every same-sex couple who wants to marry sue for their rights? One Drexel University Associate Professor of Law says yes. One veteran LGBT journalist suggests maybe — or maybe not.

In “Windsor Same-Sex Marriage Aftermath: Everyone Just Sue the Bastards,” David S. Cohen compares the climate today versus 2004, when Massachusetts first began to allow same-sex marriage. Professor Cohen points to a 2004 ACLU memo titled “Don’t Just Sue the Bastards.” Calling it a “a great snapshot in time in the movement for marriage equality,” Cohen notes “memo raises three reasons: 1) the risk of losing cases; 2) the risk of setbacks longterm; and 3) the less-than-certain odds at the Supreme Court.”

Today, clearly, the environment for same-sex couples is vastly different. 13 states, Washington, D.C., and several Native American tribes have all made same-sex marriage legal, and there are active efforts in another ten states to allow marriage equality.

Cohen says “after Windsor, I think every gay or lesbian couple who wants to get married should file federal lawsuit in every state that doesn’t allow gay marriage.”

“Let a thousand (or tens of thousand) lawsuits bloom!” he proclaims.

Cohen offers these as the “upsides” of ‘a thousand lawsuits.”

Justice Kennedy’s language can be used as a template. Since “the legal arguments are already very well developed and briefed,” the work on these cases will be “easy.”  “More cases bubbling up to the Supreme Court will keep the issue alive and in the news.” And he notes “there will also just as certainly, as we saw with many of the amicus briefing in the Supreme Court, be the absurd, offensive, and downright ludicrous” anti-equality defenses offered in courts — which can only help us.

Cohen says we should make it “[e]xpensive for discriminating states” to keep defending their anti-equality measures, such as bans on marriage equality.

“More litigation will also force states that continue their discriminatory practices to spend money to defend them.  They want to continue to have a policy of inequality?  Make it expensive.  Make them defend hundreds of lawsuits in different district courts across the state.  Even if the cases are consolidated, they’ll be expensive for the state to defend against all the parties throughout every stage of litigation.”

Not everyone is convinced this is the right approach.

Veteran journalist and LGBT activist Karen Ocamb wonders if “there any coordination on this spate of marriage efforts?” And she has many valid questions:

Questions such as: who is taking the lead on the five-year plan—AFER? HRC? A shotgun marriage with Freedom to Marry? It’s ironic that no one has yet mentioned Freedom to Marry’s Roadmap to Victory that founder Evan Wolfson has been talking about for the 20 years I’ve known him. And ironically, there is a Washington Post story by Ruth Marcus out yesterday that starts:

“Evan Wolfson received a B on the law school paper that helped change the world.

It was 1983, and Wolfson, submitting the paper required of all third-year students at Harvard Law School, had chosen a topic—constitutional protection for same-sex marriage—seemingly so far-fetched that some of the distinguished scholars he had asked to serve as faculty advisers declined.”

It’s my understanding that those LGBT legal groups have never stopped talking and coordinating. That’s good. But, that’s not known, and it might be useful for someone to pop up and note that there is some strategy, some coordination between and among LGBT national and legal groups, because to a layperson’s eye like mine, this looks like the legal Gold Rush in the old Wild West.

And as we see with the Scopes trial and evolution, and the now-successful efforts to scuttle Roe v. Wade, no matter how frustrated Rachel Maddow gets reporting on how the anti-abortion battles are impacting millions of women’s lives, and no matter how many Wendy Davises stand and filibuster, the cultural war is still on, and we will eventually lose or have to face more costly battles to secure and defend our constitutional rights if we don’t come together, engage and coordinate with our own people and a progressive coalition and strategize now. After all, the Supreme Court may have conferred marriage rights on same-sex couples in marriage states, but they effectively castrated the Voting Rights Act that most of us thought was sacred and immune from the bigotry of old. Let’s not be so arrogant as to think that would never happen to our happy gay couples.

Is there a “right” approach?

Edie Windsor often reminds us that no LGBT organization would take her case when she wanted to file it, and she won it without their support — at least their initial support. Aside from advertising the case, filing amicus briefs, and fundraising off it, how much did our LGBT orgs do to help Windsor win, and for how long?

LGBT orgs also thought that the Prop 8 case should never have gone to the Supreme Court. Were they right?

Is the time now?

 

Image by Chris Mancilla via Instagram