After New Jersey defeat, gay marriage advocates turn to courts

Gay-rights activists in New Jersey said they would file a lawsuit following the defeat of the gay-marriage bill in the state Senate Thursday. But the effort to legalize gay marriage through the courts carries its own risks.

Hours after the New Jersey Senate voted against a bill Thursday to legalize same-sex marriage, a coalition of gay-rights advocates said they would make their case in the state’s Supreme Court.

With the nationwide campaign to legalize gay marriage suffering a series of setbacks in recent months – a ballot measure was defeated in Maine last November and a bill rejected by the New York Senate – many advocates see the courtroom as the most likely venue for opening marriage to gay and lesbian couples in the near term.

In San Francisco, a lawsuit in a federal court begins Monday that challenges the Constitutionality of Proposition 8, the 2008 voter-approved initiative that banned gay marriage in California. In US District Court in Boston, two lawsuits seek to overturn the federal Defense of Marriage Act, which limits the government’s definition of marriage to a union between a man and woman.

“[T]he New Jersey legislature defaulted on its constitutional obligation to provide same-sex couples in New Jersey equal protection, as unanimously mandated by the New Jersey Supreme Court in 2006...,” said Steven Goldstein of the gay-rights group, Garden State Equality, at a press conference following Thursday’s vote. He added, “Our side is going back to court to win marriage equality.”

Vote v. court

While the San Francisco trial is focused on Proposition 8, it could have an impact on the nationwide debate on gay marriage and eventually reach the US Supreme Court.

When the case was initially filed, a coalition of gay-rights groups issued a statement saying it was too early to challenge Proposition 8 in federal courts. They wanted to return to the polls to legalize gay marriage.

“A marriage case based on the federal Constitution may well not win the right to marry back in California. A loss would likely set back the fight for marriage nationwide,” said the statement by the country’s leading gay rights groups including the American Civil Liberties Union and Lambda Legal.

That initial opposition to the lawsuit filed by two high-profile lawyers, who argued on opposite sides of the Bush v. Gore 2000 Supreme Court case, has since softened.

One of the lawyers in the case, Theodore Olson, told Time magazine, “[O]ur clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event – without the resources or experience that we can assemble.”

Courts have often been more willing to extend marriage rights to same-sex couples. It was the courts that made gay marriage legal in Massachusetts, Iowa, and Connecticut, although legislatures in Vermont and New Hampshire have enacted same-sex marriage laws. In the District of Colombia, the city council voted to legalize gay marriage.

“Often we are able to ensure constitutional protections in courts before legislatures because we are a small minority,” says Jennifer Pizer, senior counsel and Marriage Project Director for Lambda Legal, a gay and lesbian rights group.

But in other states, such as California and Hawaii, courts have ruled against gay marriage.

Most still oppose gay marriage

Some legal experts say the gay rights movement has a lot at risk if the case against Proposition 8 goes to the Supreme Court before a majority of states – and Americans – accept gay marriage. The Supreme Court is often reluctant to be too far ahead of national attitudes, they say.

Though many polls show a growing acceptance for same-sex relationships, an October 2009 Pew Research poll found that 53 percent of Americans oppose gay marriage. Thirty-one states have voted against same-sex marriage at the polls.

“The reason that you don’t turn back to the courts too soon is that this can’t be a project of the legal elite,” says Marc Spindelman, a law professor at Ohio State University. “When the citizenry don’t recognize themselves in the [decision], there’s the potential for backlash.”

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