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.

The significance of the California Supreme Court’s marriage decision

Lesbian and gay couples in California and nationwide are celebrating the state Supreme Court’s historic 4-3 decision yesterday to overturn the same-sex marriage ban. In as soon as 30 days, gay couples throughout the state will finally be able to publicly and legally declare their love and commitment to each other, just as straight couples always have.

But in addition to the social and political impact of this landmark decision, there is a significant legal impact as well. In making it clear that gay couples cannot be legally discriminated against, the court has established that sexual orientation is a “suspect classification” under the California Constitution. This means that any state laws or policies that discriminate based on sexual orientation are worthy of the same level of judicial scrutiny – the strictest level – as race and gender. This is a monumental distinction – no other state’s highest court has ever before come to this conclusion.

Other highlights of the 121-page majority decision include:

• The decision explains that there is no reason to discriminate against same-sex couples, because “the limitation clearly is not necessary to preserve the rights and benefits of marriage currently enjoyed by opposite-sex couples.” In other words, no one is harmed by gay couples being married. The decision even quotes Chief Judge Kaye’s dissent in the New York Court of Appeals marriage decision: “There are enough marriage licenses to go around for everyone.”

• The court says that assigning different terms for the relationships of opposite-sex and same-sex couples (“marriage” vs. “domestic partnership”) makes gay couples seem like second-class citizens, and that if the state doesn’t want to call it “marriage” for gay couples, they can’t call it “marriage” for straight couples, either.

• The decision explains that the historical definition of marriage is not a valid reason to continue to discriminate against gay couples who, like interracial couples, were not originally included in the traditional definition of marriage.

• The decision debunks one of the most common arguments against gay marriage: that unlike opposite-sex marriage, its primary focus isn’t raising children. This was one of the main reasons that the New York high court gave for ruling against same-sex marriage. But the California court says not only is it flawed to say that the primary purpose of marriage is to raise children (there are many childless married couples), but also, gay couples are just as capable of being loving families as their straight counterparts.

Morning Sweep – California Marriage Edition

The New York Times takes a comprehensive look at different groups’ reactions to California’s Supreme Court’s decision to strike down the same-sex marriage ban.

But with the potential of a marriage ban amendment on the Nov. ballot that, if passed by voters, would overturn the decision, NYT reports the future of gay marriage in California could still be unclear.

And will the Ca. decision rev up the presidential candidates’ discussions of gay marriage or give the Republicans an advantage come November?

Gay City News highlights the significance of the Court’s decision to make sexual orientation a “suspect classification,” meaning that any Ca. law that discriminates based on sexual orientation is now subject to the highest level of judicial scrutiny.

The Sun looks at the national and local implications of the decision.

A Wall Street Journal editorial argues that the decision will bring up the issue of activist judges in the presidential race.

It’s a bit of a downer, but Time magazine points out what the marriage decision doesn’t do for Ca. gays: give them the federal rights of marriage, like filing joint federal taxes and collecting partners’ social security benefits.

The Washington Blade looks at some national reactions to the decision.

365gay.com has reactions of national gay organizations, as well as New Jersey’s Garden State Equality.

The Advocate has several celebrity activists’ reactions to the decision.

Upon hearing the news, Ellen DeGeneres announced on her show that she would marry her girlfriend, Portia de Rossi.