Do Gays Need a Court Win For Equality?

New York is now the sixth and most populous state to legalize same-sex marriage. Last Friday night was the first time that a Republican-controlled legislative chamber voted a marriage bill into law, with the GOP providing the margin of victory. Since the New York vote demonstrated that a GOP legislature can be made to support same-sex marriage, is getting the Supreme Court decision to rule in favor of gay marriage – as proposed by Theodore Olson and David Boies – still necessary? Gay conservatives are divided on the issue.

Some same-sex marriage advocates say that gay marriage will take the path of Loving v. Virginia, the Supreme Court case which allowed interracial marriage, calling it a constitutional right. The American Foundation for Equal Rights is funding the Olson and Boies lawsuit and it's founder, Evan Wolfson, told FrumForum that no one should have to wait to marry, which is why he advocates a Supreme Court ruling to allow it nationwide:

“Every day couples are excluded from marriage is a real injury and injustice to them and their loved ones, and constitutional freedoms such as the freedom to marry should not depend on, or await, majority permission,” he said.

Clark Cooper, executive director of Log Cabin Republicans, said working through the legislative process could take many more years – so the legal strategy pursued by Olson and Boies is “a valid and important part of the fight for the equality enshrined in our Constitution.”

The Loving v. Virginia Supreme Court ruling of 1967 ended race-based legal restrictions on marriage. Cooper says same-sex marriage will follow the same path, emerging in all three branches of government.

“While it is always possible to achieve legislative change in any state, the realistic timeline for doing so in every state without judicial intervention is likely beyond most of our lifetimes,” he told FrumForum. “Sodomy laws were still on the books in several states as recently as 2003 – until they were ruled unconstitutional in the Lawrence v. Texas Supreme Court ruling.”

However, executive director of GOProud Jimmy LaSalvia said that while he supports the legalization of same-sex marriage, it is not a federal issue and should remain in the hands of state legislators. Not only would this more directly express the will of the people, but it would be more effective at becoming widely accepted.

“The federal government should stay out of the issue,” he told FrumForum. “What’s happening is appropriate – that the states are deciding this issue. Certainly, a federal marriage amendment for the constitution would be the largest federal power grab of the states in history.

Advocates for a legal remedy to the same sex marriage issue will ultimately need to wrestle the the consequences of another landmark decision that came from the Supreme Court: Roe v. Wade, the controversial decision which legalized abortion. Some feminists and pro-choice advocates have argued that winning that right through a sweeping court decision has not been helpful in the long term.

However, since the struggle for marriage equality is now arguably a civil rights struggle, some argue that the only proper redress is through the courts. David Boise's spokesperson told FrumForum:

The point of constitutionally protected rights is that they are not subject to popular vote.  Gay and lesbian individuals should not have to plead with their elected officials or their fellow citizens to recognize the fundamental rights that are guaranteed to them by the Constitution.  But in most states in this country, gay and lesbian couples, unlike heterosexual couples, are still denied the fundamental right to marry.