Wait to fight Prop 8

The trial to determine the legitimacy of Proposition 8 – the ballot initiative repealing same-sex marriage in California – is currently underway. The question is whether the measure violates the federal constitution’s protections of equality.

While banning a specific group of people from participating in an aspect of civic life that is legal for everyone else clearly does violate the constitution in my (and a growing number of other Americans’) opinion, supporting the legal challenge to this ban is fool-hardy and naive.

If you think same-sex marriage should be legal, you should not support challenging Prop 8 in federal court.

The reason is really quite simple: We will almost certainly lose. It’s true that we may win small victories working our way through the lower federal courts, but these will be short-lived victories because the current U.S. Supreme Court is absolutely not going to side with us.

While I assume their intentions are pure, the lawyers and groups suing to challenge Prop 8’s constitutionality need to take a closer look at their endgame – and it doesn’t look good.

In the years since Bush’s appointments of Chief Justice John Roberts and Associate Justice Samuel Alito, the Supreme Court has taken a turn towards the right, with a solid 5-4 conservative majority. There is no way a Supreme Court composed as the current one is would side in favor of overturning marriage inequality.

Overturning a law is one thing; overturning judicial precedent is quite another. All it would take to overturn marriage discrimination at the state or federal level would be legislative action – either Congress or a state general assembly voting to end the discriminatory practice of allowing only straights to marry. It would be better for the decision to come from the Supreme Court.

However, supporters of ending unfair marriage inequality should not be happy about potentially seeing this case before a conservative-leaning court. Supreme Court cases are much less frequently overturned or even revisited than regular legislative issues or lower court rulings.

Because of the high degree of likelihood that the Supreme Court will not rule in support of ending unequal marriage laws, this case could potentially set the gay rights movement back decades.

A defeat before the Supreme Court would be devastating, potentially taking decades to be overturned or nullified by a constitutional amendment. Before we take a case to the highest court, we need to be absolutely sure that we have the numbers necessary to win; the stakes are just too high to risk it otherwise.

If you, like me, are one of the 40 to 47 percent of Americans who support ending the unequal application of marriage laws, you should stick to supporting legislative and state court initiatives for now.

We need to wait at least until we have one more solidly liberal member of the Supreme Court before we challenge marriage inequality. This challenge to Prop 8 is dangerous and foolish.


E-mail: zammerma@indiana.edu