Private: Prof. Eskridge Questions Timing of Marriage Equality Lawsuit

In a piece for Slate, William N. Eskridge Jr. and Darren Spedale conclude that the federal lawsuit challenging the constitutionality of California's anti-gay marriage amendment is likely poor strategy. The lawsuit was filed on behalf of two gay couples by high-profile attorneys Ted Olson and David Boies. Olson represented George W. Bush and Boies represented Al Gore in the Bush v. Gore case, involving the Florida vote count. While calling the lawsuit a "brash, bold move to nationalize marriage equality," Eskridge and Spedale write in Slate that its timing is likely off kilter, citing a Supreme Court that is likely not receptive to advancing marriage equality.

Should constitutional rights be withheld out of fears of backlash and reversal? Not necessarily. We should be bold and insistent, as Thurgood Marshall was in pressing civil rights claims in the 1940s and ‘50s. But Marshall was also strategically smart. He did not press his case for school desegregation and interracial marriage until his allies had local victories all over the nation (including Maryland in the South), dedicated allies within the executive branch, and a receptive audience among the justices.

We are confident these victories are coming for advocates of same-sex marriage. California will surely soon again make history within the next few years, when its voters overturn Prop 8 and recognize marriage equality. When the state-by-state experiment with gay marriage becomes more the norm than the exception, the constitutional argument for same-sex marriage will become just as clear to the justices of the Supreme Court as it is for Ted Olson and David Boies.

Eskridge, a Yale Law School professor, is also contributor to the recent book edited by Profs. Reva Siegel and Jack Balkin called The Constitution in 2020. 

Constitutional Interpretation, LGBTQ Equality