The Supreme Court will not respond to the “passions” of the GLBT communnity. Wanting marriage does not do the legwork needed to achieve it. People seem to embrace a very immature and ahistorical notion about “change” – something that the Obama generation is quickly learning to discard. It really takes work. This does not make someone a gradualist sell-out. Instead, it is a statement of reality.

Finally, “aggressive” action need not happen in a court. The GLBT groups have not opposed the marriage equality movement. Instead, they believe that the process should remain in state courts and legislatures rather than federal courts. The notion that progressive change is the exclusive province of federal courts is untrue.

On big political and social issues, the Court comes in to correct the “outliers.” When Loving v Virginia was decided, for example, only 16 states banned interracial marriage. Also, the Court had favorably decided so many race cases, including Brown v Board of Education, that it was easy to predict how it would rule. Furthermore, Congress had already passed the Civil Rights Act of 1964 and the Voting Rights Act. And just about all of the states banned racial discrimination in some respect. Basically, there was a long history of racial justice that informed the Court’s ruling in Loving.

By contrast, outside of hate crimes laws, no federal statute protects GLBT people from discrimination. The military openly discriminates against GLBT people pursuant to federal law. Only six states recognize same-sex marriage. DOMA is still the law of the land. The President opposes same-sex marriage. Many states have amended their constitutions to ban same-sex marriage. And only a few states prohibit discrimination against GLBT people. These are not the best conditions to bring a federal case — particularly with 4 votes already in the “no” column.

When Romer v Evans was decided, only ONE state (Colorado) prohibited the enactment of laws protecting gays and lesbians from discrimination. When Lawrence v Texas was decided, only four states criminalized same-sex sodomy exclusively — while in Bowers, about 25 states criminalized sodomy. The Court routinely cites to developments in the states and in Congress when it decides important “rights” and “equality” cases. This lawsuit and the arguments that endorse it fail to appreciate or understand this historical and doctrinal context.

http://dissentingjustice.blogspot.com/2009/05/ted-olsen-and-david-boies-are-either.html

Really, who is this paying Ted Olson’s and David Boies’s $1000+/hour fees for a pipe dream? I wanna recruit that guy as a client.

LGBT rights organizations “would not pick this particular fight,” but brilliant legal minds did, in fact, pick this particular fight. You’re right about millions of gay couples being in far worse situations, but I disagree that there are better ones out there. If there were “better ones out there,” why didn’t the LGBT groups offer them up to help strengthen a case that they consider inferior?