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Should marriage equality be taken to the U.S. Supreme Court now or later?

A legal dream team, Ted Olson & David Boies, who were on opposing sides in Gore v. Bush (2000), have joined forces to file a federal lawsuit against prop 8.

The initial trial is set for January 11th, but this won't be over until at least 2011.

There's a lot of speculation that this case may reach the Supreme Court.

Some worry that this lawsuit is premature.

They feel we should wait until the year 2020...........when gay marriage is legal in the majority of U.S. states.

because if gay marriage is the "norm" instead of the "exception," this will strengthen our chances of winning.

If this gets to the Supreme Court and loses.........the consequence will be negative precedent.

Will it be possible to eventually reverse the precedent? I don't know.

The make-up of the Supreme Court is: 4 liberals, 4 conservatives, and one moderate; Anthony Kennedy.

Kennedy is known to lean conservative, but......

He has a pro-gay rights record.....he authored 2 major gay rights rulings:

Romer v. Evans and Lawrence v. Texas.

but it remains uncertain where he stands on the issue of gay marriage.

1. Do you think this lawsuit has just as good of chance of succeeding now as it will in ten years?

Does it even matter if it is legal in the majority of U.S. states?

Do you think Kennedy will be influenced by that?

2. Do you think the Supreme Court will even agree hear the case?


dante: with interacial marriage, courts have ruled that marriage is a fundamental right.

14 Answers

  • 1 decade ago
    Favorite Answer

    Long Answer:

    1: Now, as explained below with suggested (limited) strategy

    Given the suggested strategy, I don't think that legality by state is a factor that should be considered, but it could be.

    2: Possibly

    Ok, what you need to look at for this question to be answered are recent rulings. The one that springs most readily to mind is Schroer v Library of Congress from September 2008 (Most recent ACLU article included in links section). In this case a transwoman applied for a position at the LoC. When she applied she was still presenting as male and had a distinguished military career. After she had been (all but) given the position she spoke with her soon to be boss about her condition, and advised that she woud be starting her 2 years presenting as female prior to her surgery. Suddenly she didn't have the job anymore. Diane sued the LoC under Title Vii (civil rights act) and won the case.

    With victories like this, the chances of winning a case against Prop 8, Amendment 2, etc. . .are good. I'd personally sue on different grounds however. I'd sue as a Title Vii charge against any state (or perhaps the US Government itself) that denied gay marriage. Inserted below is a copy of Title VII from the civil rights act as copied from wikipedia and some of the changes it's wrought.

    I would sue under title seven stating that the prevention of gay marriage is a form of sexual harassment. Given that same sex sexual harassment has been upheld as a violation of this act, it makes sense that fighting that ground gives precedent for the case.


    Title VII

    Title VII of the Act, codified as Subchapter VI of Chapter 21 of 42 U.S.C. § 2000e [2] et seq., prohibits discrimination by covered employers on the basis of race, color, religion, sex or national origin (see 42 U.S.C. § 2000e-2[22]).

    Title VII also prohibits discrimination against an individual because of his or her association with another individual of a particular race, color, religion, sex, or national origin. An employer cannot discriminate against a person because of his interracial association with another, such as by an interracial marriage.[23]

    In very narrow defined situations an employer is permitted to discriminate on the basis of a protected trait where the trait is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. To prove the Bona Fide Occupational Qualifications defense, an employer must prove three elements: a direct relationship between sex and the ability to perform the duties of the job, the BFOQ relates to the "essence" or "central mission of the employer's business," and there is no less-restrictive or reasonable alternative (Automobile Workers v. Johnson Controls, Inc., 499 U.S. 187 (1991) 111 S.Ct. 1196). The Bona Fide Occupational Qualification exception is an extremely narrow exception to the general prohibition of discrimination based on sex (Dothard v. Rawlinson, 433 U.S. 321 (1977) 97 S.Ct. 2720). An employer or customer's preference for an individual of a particular religion is not sufficient to establish a Bona Fide Occupational Qualification (Equal Employment Opportunity Commission v. Kamehameha School — Bishop Estate, 990 F.2d 458 (9th Cir. 1993)).

    Title VII allows for any employer, labor organization, joint labor-management committee, or employment agency to bypass the "unlawful employment practice" for any person involved with the Communist Party of the United States or of any other organization required to register as a Communist-action or Communist-front organization by final order of the Subversive Activities Control Board pursuant to the Subversive Activities Control Act of 1950.[citation needed]

    There are partial and whole exceptions to Title VII for four types of employers:

    * Federal government; (Comment: The proscriptions against employment discrimination under Title VII are now applicable to the federal government under 42 U.S.C. Section 2000e-16)

    * Federally recognized Native American tribes

    * Religious groups performing work connected to the group's activities, including associated education institutions;

    * Bona fide nonprofit private membership organizations.

    The Equal Employment Opportunity Commission (EEOC) as well as certain state fair employment practices agencies (FEPAs) enforce Title VII (see 42 U.S.C. § 2000e-4[22]). The EEOC and state FEPAs investigate, mediate, and may file lawsuits on behalf of employees. Every state, except Arkansas and Alabama maintains a state FEPA (see EEOC and state FEPA directory ). Title VII also provides that an individual can bring a private lawsuit. An individual must file a complaint of discrimination with the EEOC within 180 days of learning of the discrimination or the individual may lose the right to file a lawsuit. Title VII only applies to employers who employ 15 or more employees for more than 19 weeks in the current or preceding calendar year.[citation needed]

    In the late 1970s courts began holding that sexual harassment is also prohibited under the Act. Chrapliwy v. Uniroyal is a notable Title VII case relating to sexu

    Source(s): -The Baron Cimitiere Supports Equiality EDIT: Hey Kristine, when did you get married?!
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  • Anonymous
    1 decade ago

    Let's not jump the gun. The case has to first be heard as a challenge to the California State Constitution. If it fails there, it can be *appealed* to the US Supreme Court, and the high court may select it or not as a case they are willing to hear. As simple as this sounds, in a couple of short sentences, there is a great leap to be made from local challenge to National appeal.

    One step at a time. I believe the appeal will pass the high court, simply because a ban on gay marriage can be shown to violate the US Constitution, and therefore be declared unconstitutional and overturned. There is no constitutional support for a ban on gay marriage except DOMA, which would be overturned in the same process.

    It is my opinion that DOMA should be challenged before California's case, but the case from California may provide the impetus from which DOMA's constitutionality is finally reviewed. Keep in mind that DOMA was enacted as a US Constitutional ammendment. An ammendment to the National Constitution cannot be challenged except that, by case law, it is found to be in conflict with the remainder of the document and it's intent. This California case may well be the one that gets DOMA on the docket. For this fact, alone, the US Supreme Court may refuse to hear the appeal. The appeal would have a great deal riding on its coat-tails.

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  • Anonymous
    1 decade ago

    When you break down the constitution (which is what the supreme court does) There is no passage that states marriage is a constitutional right. And thats the issue. At no point did the constitution say that people have a right to get married. Therefore they can not make a sweeping judgement that gay marriage must be allowed. Also, there are currently more pro-traditional judges then pro-gay marriage justices. So since there is to federal law. That would leave it up to states rights. Most states would put it to a vote. Votes have tended to go against gay marriage.

    the best bet would be to wait till the court has more of a liberal slant. Which could take some time because i cant forsee a conservative judge stepping down while A liberal is president and most of them are not close to death

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  • Laurie
    Lv 4
    4 years ago

    I guess the issue is that Gays were not always viewed the way they are now in a more socialized society. For example Gays simply had rights before but over time lost those rights mainly because they were never specifically spoken to be "Gay Rights". For example when the founding fathers formed the Constitition they didn't think that they had to give each group within america rights, as all americans were given rights under the constition equally. But we ended up having to identify age, sex, race, ethnicity, and eventually sexual preference as have equal rights. Before America Gays existed in many cultures from Asia to Africa to Europe and throughout thousands of years as simply have the same rights as others. However perhaps rights were not clearly defined and thus as we have become a nation of strict laws and great social benefits there seems to be some gaps in the ways Gays are recognized or treated. Specifically Marriage comes to mind not because Gays seek the right to love and live together as a couple. Gay have always done lived in society till ancient times without any problems. Today they seek IRS, Federal, Social Security, State, and Employment benefits. These benefits such as the IRS benefits of marriage really didn't matter 50 or 75 years ago as there was no benefit to marriage for taxes as most persons were not taxed federally. Social security emerged in the 1930's. Employement benefits for married eployees did not matter as most employees 75-100 years ago got no benefits due to marriage, or even benefits at all. So really gays are just trying to get the social benefits at a federal, state and municipal level that they were not given as these programs were created over the past 100 years.

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  • 1 decade ago

    Many fear that if the case goes to the Supreme Court now, supporters of equal rights may lose. and that would set the movement back, so others want to wait. I would agree with the latter as a question of tactics. However there are many ways of skinning a cat or getting to heaven. So if the differences are irreconcilable,then we must respect the views of all the committed people and accept whatever form of struggle they choose. It's the only way to stay united, because if not we would be playing into the hands of the enemy

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  • Anonymous
    1 decade ago

    I really think with the way things are going that gay marriage will not be legal throughout the country in my life time. But to answer your questions:

    1. I think it would be better to push now then later. While it's still on people's mind and it's still fresh I think we really need to get out there, put the facts on record and really fight for our rights. This whole waiting business is not doing anyone good. Why wait? So we can better accomodate those who don't feel like dealing with this issue? No!

    2. I think the Supreme Court is doing everything in their power to not deal with this issue. Which makes no sense to me what so ever. It was the government that entitled marriages as they are today, not the church and it should be the governement that gives the rights justly to the people who pay their salaries.

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  • 1 decade ago

    Baron Cimitiere has a very good answer I feel.. in my opinion, the short answer is that I feel it should be brought to court now, but also at the same time looking at the us constitution and what it means to have equal rights for everyone!

    While this is a separate issue, the question should be asked where do the "churches" obtain the money to fund movements like California’s prop 8 effectively overruling US constitutional rights and discriminating against a segment of the population.

    In my opinion, as the majority of the financial backers and people for things like prop 8 are your major churches, along with there several large corporation investments have moved from being non-taxable organizations to for profit companies, that should be taxed like any other company, and forced to reveal all of their financial records.

    so while the basic concept is same sex marriage act should be simple and follow the us constitution, it’s also being fought against by organizations which feel they have the ordain right to dictate and discriminate against individuals who do not follow their beliefs at not only a national level, but world wide level.

    Hence some of the basic reasons there is war between places like the Middle East.

    Additionally this to me is a perfect testimony about why we should support same sex marriage!

    Youtube thumbnail


    Source(s): intersexed woman with a transsexual marriage
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  • 1 decade ago

    Gay rights is no different from ethnic group rights or women's rights, so as long as the case is about civil rights in marriage, the outlaw of gay marriage (in any way shape and form) should be overturned.

    However, it is likely that the court will claim that the label "marriage" can remain as is--i.e. between a man and woman. The rights associated with marriage, however, will become inalienable and universal to all couples. I.E. states must maintain the rights of marriage for all couples so as not to be discriminatory (which is banned in the constitution).

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  • Anonymous
    1 decade ago

    I agree with McGee.

    I believe the important step to take at this junction is to fight for civil rights and not marriage rights. I believe the more we push the marriage issue as this stage, the less chance of any rights later on. We can't force people into something. We have to ease them in. We have to show these mindless bigots that we are nothing to be considered a threat. They need to be able to see for themselves in their own lives and interactions that we are just like they are. As is, all they see is us wanting to take something from them, which we all know isn't what we are attempting to do.

    1. No good chance now, no. It may pass, but it will cause more problems and make it appear that we aren't willing to listen to the majority. We need to educate the majority to get them on our side. Remember, the enemy is already utilizing propaganda and education (all though it be lies) against us. We have to approach the subject in the same fashion, but just short of the ignorant bigoted mudslinging the enemy is using.

    Yes it will matter if the majority goes along. Majority rules.

    Possibly. Hard to tell at this stage.

    2. Certainly will. Just, in time.

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  • Will
    Lv 7
    7 years ago

    This question makes NO SENSE AT ALL.

    The case has already been decided by the court. It was sent back to California without ruling due to the court's inability to grant "Standing" to the litagants.

    Why are you asking about it now?

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