Last week the trial that likely will lead (eventually) to the U.S. Supreme Court deciding whether there is a constitutional right to same-sex marriage began in earnest. The federal challenge to California’s Proposition 8, the voter initiative which banned same-sex marriage in that state, has begun.
Right now, however, the case is being heard in a federal court in San Francisco. Once it is decided there, the losing side is almost certain to appeal to the 9th Circuit Court of Appeals. Whichever side loses on appeal will probably then petition the U.S. Supreme Court to hear the case. If the Supreme Court decides to hear the case (which seems likely, given the weighty constitutional issues involved), it could resolve the issue once and for all.
There have been several interesting developments leading up to this trial. Last year, the 9th Circuit Court of Appeals ruled that the organizations that did most of the campaigning for Proposition 8 did not have to disclose internal strategy documents which opponents of the measure claim would have proven that the law was motivated by animus towards the gay community. This might have allowed the trial court to invalidate Proposition 8 without deciding the much weightier issue of whether or not there is a right in the federal constitution to same-sex marriage.
Last week, the U.S. Supreme Court issued an order prohibiting footage of the trial from being posted on YouTube, on the grounds that it might affect witness testimony, and prejudice the case. It’s likely that the video of the trial will be released eventually, but it is not clear when (or if) this will happen.
The fact that this issue has made it into federal court at all might be considered something of a moral victory for supporters of same-sex marriage.
On the other hand, if the Supreme Court finds that there is no constitutional right to same-sex marriage, the legal situation will remain largely the same – states will be free to allow or disallow same-sex marriage as they see fit, and states that have already legalized same-sex marriage will be unaffected. However, if this happens, supporters of same-sex marriage will likely have lost their only shot at getting same-sex marriage legalized across the country, ending the patchwork of state laws we currently have.
This raises an interesting question: is litigation the best way to go about legalizing same-sex marriage? In the interest of disclosure, laying out any biases I might have, I should note that I firmly support the legalization of same-sex marriage.
But getting to the issue at hand – might the interests of marriage equality be better served if more time were spent lobbying Congress and state legislatures, rather than asking the courts to declare laws against same-sex marriage unconstitutional?
While it’s undeniable that we need courts, and one of their essential functions is to determine the constitutionality of laws passed by the legislature. However, the general public seems to get really nervous when it looks like courts are setting basic public policy, whether they actually are or not.
Also, because it’s fairly easy in many states to amend the state constitution, often by popular vote, it’s not unheard of for these rulings to be overturned by legislation in the next election.
In the end, it seems that the interests of marriage equality could be better served in 2 ways: educating the public about gay rights and discrimination against homosexuals, and spending more energy lobbying legislatures, rather than focusing on high-profile judicial rulings. Of course, this approach will take a more coordinated effort between various organizations across the country, and it may take years for it to show any results, which may be why it doesn’t appear to be the preferred approach. However, given the recent setbacks that the marriage-equality movement has suffered, trying something new couldn’t hurt.