Windsor Same-Sex Marriage Aftermath: Everyone Just Sue the Bastards

Cross-posted at The Faculty Lounge.

In 2004, after Massachusetts became the first state in the country to allow same-sex marriage, the ACLU distributed a memo warning people against bringing new same-sex marriage litigation.  It was titled “Don’t Just Sue the Bastards.”

As you can see if you follow the link, the memo argues that mid-2004 was not the right time for everyone to go into court making claims of marriage equality. The memo raises three reasons: 1) the risk of losing cases; 2) the risk of setbacks longterm; and 3) the less-than-certain odds at the Supreme Court.  The memo is a great snapshot in time in the movement for marriage equality, and  I love teaching it for the interesting issues of social movement strategy and legal ethics that it raises.

But, that’s a discussion for another time.  In the wake of last week’s decision in Windsor, I’m thinking of this memo again but in a different way — that the best move forward for marriage equality at this point would be the complete opposite strategy.  Thus, the title of this post – Everyone Just Sue the Bastards.

Let me make this clear – I am in no way currently connected to any of the groups strategizing or litigating this issue.  I am, however, a long-standing and huge proponent of marriage equality, and after Windsor, I think every gay or lesbian couple who wants to get married should file federal lawsuit in every state that doesn’t allow gay marriage.  Let a thousand (or tens of thousand) lawsuits bloom!

The upsides are obvious.  I’ll break them out here:

Windsor: Windsor has excellent language about equality and the importance of marriage.  The language is preceded by Justice Kennedy’s usual homage to federalism, but the part of the opinion about equality and marriage does most of the work.  Any lawyer worth his or her salt will be able to use that language to make the previously-very-strong constitutional argument for same-sex marriage even stronger.

Easy work: And that work isn’t going to be that hard.  Beyond adding Windsor into the mix, the legal arguments are already very well developed and briefed.  Every lawyer taking a same-sex marriage case need only look to the excellent briefing in the Supreme Court (by the parties and some of the amici) to make the strongest arguments possible for same-sex marriage.  No one has to reinvent the wheel here.  They just have to add the language from Windsor and the pleadings are taken care of.  Certainly there will be more state-specific work, but so much is already done.

Back to the Supremes in a better posture: Bringing thousands of cases in states that prohibit same-sex marriage AND have government officials who will defend the cases will avoid the Perry problem.  Perry, as we all know, was a missed opportunity to get the Supreme Court to announce equality for all.  Other cases without the procedural issues from that case are needed, so litigants need to sue for a license in the 37 states that still prohibit same-sex marriage to get a case working its way to the Supreme Court.  And given Windsor, it’s very likely a proper case before the Court would win.

Lower court wins: Along the way, litigants may just win.  As we saw in Perry, district courts and circuit courts might decide that the Constitution protects a right to same-sex marriage.  More winning decisions in federal court will certainly help the cause.

Expensive for discriminating states:  More litigation will also force states that continue their discriminatory practices to spend money to defend them.  They want to continue to have a policy of inequality?  Make it expensive.  Make them defend hundreds of lawsuits in different district courts across the state.  Even if the cases are consolidated, they’ll be expensive for the state to defend against all the parties throughout every stage of litigation.

Keeping the issue alive:  Same-sex marriage is a on a roll.  Windsor and the reinstatement of marriage in California come on the heels of the electoral victories in November 2012 (Washington, Maryland, Maine, Minnesota) and the legislative victories in early 2013 (Colorado, Delaware).  More cases bubbling up to the Supreme Court will keep the issue alive and in the news.  A massive wave of cases would do that even more so.

More stupid defenses of the law:  I have yet to see a well-reasoned defense of marriage inequality, but forcing states to defend these laws will undoubtedly bring out all different qualities of defense.  There will certainly be non-offensive statements that are within the realm of reasonable debate, but there will also just as certainly, as we saw with many of the amicus briefing in the Supreme Court, be the absurd, offensive, and downright ludicrous.  (Think, in a different realm, about “legitimate rape,” women “shut[ting] that whole thing down,” masturbating fetuses, and rape kits that allow women to “get cleaned out.”)  These comments will help move the needle even further toward equality.

Are there downsides?  Sure.  Nothing’s without downsides.  But, compared to 2004, we’re in a different place.  In 2004, the ACLU was concerned about having losing cases on the books.  They were concerned what that would do longterm.  Well, we know the answer now.  The highest courts in Washington, Maryland, and New York all rejected marriage equality claims.  Yet, all three of those states have since changed to a system of marriage equality.  There are losing cases on the books from other states too, such as in Arizona state court and Nevada federal court, but that didn’t stop the Supreme Court from coming out the right way in Windsor.  These cases also haven’t stopped popular opinion from shifting dramatically in favor of equality on this issue.  In other words, we’ve had the losses, but the movement is continuing full-steam ahead.

What about the risk in the Supreme Court?  As I wrote above, after Windsor, it’s hard to argue that the Court will issue a ruling against same-sex marriage.  Maybe they aren’t ready to rule for same-sex marriage, as we saw in Perry, but a ruling against same-sex marriage seems out of the question.  And any case started now will take at least a couple of years to get to the Court, by which time Windsor will have sunk in and the world will not have imploded, popular opinion will continue to change in favor of equality, and maybe the Court personnel might change for the better too.  The last is certainly a wildcard, but the other two are not.

Finally, maybe it’s time to turn attention away from marriage and to other goals of the movement for LGBT equality.  There has certainly been a lot of criticism of all the money and effort that has been expended toward the claimed assimilationist goal of marriage and not to, what some feel are more pressing, the concerns of employment discrimination, hate crimes, poverty, transgender rights, and more.  While I agree these are all important goals, I think you can fight multiple things at once.  And if it really is about fighting one issue at a time, it wouldn’t make sense to stop climbing K-2 three-quarters to the top to then start climbing Everest.

Bottom line here is that the downsides from 2004 are much less now than they might have been then.  The remaining 37 states need to feel the pressure, and thousands of litigants can keep that pressure on.  The time is now.

Everyone just sue the bastards.