To sue, or not to sue?

Yesterday, a coalition of gay rights organizations released a joint advisory about what same-sex couples should do now that marriage has been won in California. The coalition includes the ACLU, GLAD, Lambda Legal, the National Center for Lesbian Rights, the Equality Federation (of which the Pride Agenda is a member), Freedom to Marry, GLAAD, HRC, and the National Gay and Lesbian Task Force.

The advisory tackles the question of whether same-sex couples everywhere should sue their employers, states and the federal government for the same rights that have been won in California. The answer is no.

Although some lawsuits could potentially have good results in some states, they have almost no chance of winning in states with more conservative records and less public support for gay rights. And unfortunately, just like the decision in California sets a great legal precedent for the future, the opposite can also be true: rulings in other states against marriage for same-sex couples will set back justice for years to come. The negative momentum created by just a few bad decisions would slow down justice even in states that are close to marriage equality, like New York.

In the legal world, it’s very difficult to overturn a court case once such a precedent has been set. And nowhere does this hold truer than on a federal level, so if a challenge to the federal DOMA were to reach the Supreme Court and be overruled, it would make the fight for marriage equality all the more difficult for years and potentially decades to come. In addition, it makes more sense to win marriage through legislation than through the courts, since the law can’t be struck down as easily.

So what can same-sex couples do to win marriage? Couples that have already been married in places where it is legal should continue to be vocal about their marriages so that their neighbors, coworkers and community can see that lesbian and gay marriages are no different than their own. Same-sex couples can be active in asking their towns to establish domestic partnership registries and asking their employers for partner benefits. But hold off on hiring a lawyer, for now. By picking their battles where they know they can win, same-sex marriage activists will have a much better chance of winning equality and justice in both New York and beyond.