U.S. Supreme Court ruling coming soon on same-sex marriage?

Last Tuesday's other big story--alongside news of President Obama's announcement of Sonia Sotomayor to fill an upcoming U.S. Supreme Court vacancy--was the California Supreme Court's decision to uphold the legality of Proposition 8, a referendum narrowly passed by voters last November to amend the state constitution to restrict marriage to opposite-sex couples, even while ensuring the continued validity of the 18,000 or so same-sex marriage licenses issued in the six months prior to Election Day.

Needless to say, the court's 6-1 decision to affirm the right of voters to amend the state constitution to deny rather than expand rights is disappointing and troublesome. It now appears that, unless voters reverse their actions in a future statewide referendum, the only chance that Californian same-sex couples (as well as such couples in the dozens of other states with constitutional amendments banning marriage equality) will have to be granted equal rights is a successful challenge of the state law in federal court.

Indeed, within 24 hours of the court's ruling, such a lawsuit was filed on behalf of two California same-sex couples by the unlikeliest of bedfellows: attorneys Ted Olson and David Boies, who argued against each other in the infamous 2000 U.S. Supreme Court case Bush v. Gore, which effectively decided the outcome of that year's presidential election (and sealed the fates of hundreds of thousands of innocent people around the globe... but I digress). While I agree with the spirit in which this motion was filed, like many who look forward to a day when marriage equality is practiced nationwide and recognized at the federal level, I worry that this lawsuit may be greatly mistimed. Messrs. Olson and Boies seek to emulate the landmark Loving v. Virginia ruling in 1967 which invalidated state bans on interracial marriage; however, it is worth noting that the current make-up of the U.S. Supreme Court hardly resembles the Warren court of the civil rights movement's hey-day. In fact, it is entirely possible that a failure at the U.S. Supreme Court level will devastate the movement for equal rights and set it back at least a generation in large swaths of the country.

The debate within the LGBT rights community regarding the best tactics going forward--continuing to advocate for equal rights at the state and local levels while waiting for a more friendly Supreme Court versus filing lawsuits now in federal court--is likely to continue for some time. I'm not sure exactly where I stand on this issue, as I applaud Olson, Boies and their clients for confronting the matter head-on but also worry about the long-term consequences of failure. I suppose that I can only hope that they use their courtroom talents to the fullest and get it right the first time.