EDGE Dallas

GLBT groups responded with alarm to news that a federal lawsuit challenging Proposition 8 had been filed.

With the May 26 upholding of Prop. 8 by the California Supreme Court, the only avenues now available to marriage equality advocates are a new ballot initiative to repeal Prop. 8, which revoked the existing right of California families to wed, or else a ruling from a federal court that would override the state court.

The lawsuit, brought by former Bush administration Solicitor General Ted Olson and David Boies, seeks the former remedy.

Olson and Boies famously faced off in the 2000 court case that led to George W. Bush’s presidential victory despite ongoing recounts in that year’s election.

Now the former rivals are united in what they call a civil rights struggle for gay and lesbian families.

Olson saw a precedent in the 2003 Supreme Court case that threw out a Texas law criminalizing same-sex consensual intimacy. That decision had the effect of nullifying all such laws in the nation.

But GLBT leaders are upset at the step, which they see as far too risky. Indeed, though the rewards of a triumph would be widespread, with marriage equality potentially made legal across the United States should the case go to the Supreme Court and win, the consequences of a loss could be just as wide-ranging, GLBT leaders fear.

For that reason, GLBT equality adovocates prefer a slow and steady, state-by-state approach over a sweeping federal reform.

A May 28 Associated Press article quoted the National Center for Lesbian Rights’ Shannon Minter, who has been at the front lines of the battle for marriage equality for some time.

Said Minter, "In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative US Supreme Court precedent."

And a May 28 San Francisco Chronicle story quoted Lamda Legal’s Jon Davidson as pointing out that the Texas law Olson referred to the court overturning had been upheld in 1986 by the Supreme Court itself, in a narrowly decided ruling that was cited in subsequent legal cases targeting gays and lesbians.

Davidson argued, "It is a difference in strategy.

"We agree with the goal," Davidson continued. "But if [Olson and Boies] were to lose, it could be a huge setback for the gay rights movement."

The Chronicle quoted from a memo made available through nine GLBT and civil rights groups, titled, "Why the ballot box and not the courts should be the next step on marriage in California," which pointed out that in the 2003 case in which the Court reversed its earlier decision, the Court "explicitly commented that it was not saying anything about formal recognition of same-sex relationships."

Added the memo, "There is much we can and should do together to strengthen our hand before we put a federal marriage case before the justices," the Chronicle reported.

Indeed, Evan Wolfson of the GLBT equality group Freedom to Marry sent out a May 27 press release that stated, "In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back."

The release argued that, "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

The release referred to two documents that "discourage... people from bringing premature lawsuits," including "Why the ballot box and not the courts should be the next step on marriage in California" and "Make Change, Not Lawsuits".

The Chronicle reported that law professor John Oakley of the University of California Davis called the suit "a silly and rash act," adding, "There is no evidence that the Court is near that point."

In some ways, the new controversy within the GLBT community resembles that of five years ago, when the first state to grant marriage equality, Massachusetts, moved ahead while some elements in the community gave voice to fears that the issue of marriage equality would derail the Democratic candidate for the 2004 elections, John Kerry.

While the issue likely did spur on a rash of state constitutional amendments that gained momentum that year and continued in subsequent elections, the so-called "values voters" who were initially credited with securing the election George W. Bush in 2004 have, since then, largely been discounted, with fears of terrorism being cited as the most compelling reason Bush was favored by voters that year.