Suppose you were the czar of civil rights litigation for the LGBT community in America. What should your strategy be with respect to federal equal protection clause challenges to state laws forbidding same-sex marriage? Here are a few considerations:
1) The first state high court to suggest that laws restricting same-sex marriage deny equal protection on state constitutional grounds was the Hawaii Supreme Court in 1993. The ruling was never implemented, however, because the people of Hawaii overturned the decision by state constitutional amendment, although not before it inspired the odious federal Defense of Marriage Act. Subsequent decisions recognizing either fully equal rights under domestic partnership laws or marriage itself have been coming out of the state courts since then, along with decisions and ballot initiatives going the other way.
2) Given that the issue has been in the courts for over 15 years already, it's quite remarkable that no one has yet successfully brought a federal equal protection claim in some lower court. That's not entirely an accident. The LGBT civil rights community has been assiduously avoiding bringing federal claims precisely for fear that success in a state supreme court or federal appeals court would bring a ruling from the U.S. Supreme Court that finds no right to same-sex marriage. Such a ruling could in turn delay the date when the Court might otherwise recognize a right to same-sex marriage. The theory goes like this: It's harder to overrule a decision saying no same-sex marriage right than to recognize such a right in a case presenting the case de novo.
3) Is that theory accurate? Probably at least a little bit. As a formal matter, stare decisis matters for the Justices. Still, the empirical evidence shows that stare decisis doesn't matter a whole lot. (Indeed, the leading study found that of recent Justices, only Justice Powell seemed to care about stare decisis.) A stare decisis effect could, I suppose, delay the recognition of a right to same-sex marriage by about 5 years, but it must be balanced against the possibility that a federal same-sex marriage case in the Supreme Court could succeed now---which in turn must be balanced against the small but non-trivial possibility that such a success could trigger support for a constitutional amendment specifically banning same-sex marriage.
4) If all these probabilities are giving you a czar-sized headache, consider this additional worry: You can't control who brings the cases. Even if you instruct your minions in the Lambda Legal Defense Fund, the ACLU and the Human Rights Campaign not to bring federal equal protection claims, that's not going to stop Bob the Builder ("Yes We Can") and Joe the Plumber (no, not that Joe the Plumber) from hiring Larry the Lawyer to sue claiming a federal equal protection (and while we're at it, due process) right to marry. Bob and Joe want to get married now, and while they'd prefer not to upset your strategic litigation decisions, they really must put their own future first. If there is a substantial chance that they could succeed by including a federal claim where they would fail with only state claims, they have an incentive to include it, and you have no legal right to stop them.
5) Indeed, the possibility of lousy representation by Larry for Bob and Joe keeps you up at night. If you're going to have the case end up in the Supreme Court anyway, wouldn't you rather be counsel of record than an amicus, with Larry arguing the case? Sure you would (unless you conclude that you WANT to lose in the Supreme Court to prevent the dreaded constitutional amendment). So does that mean you should get ahead of the curve and file a federal test case now, before Bob and Joe (or perhaps representing Bob and Joe yourself)?
These are very tricky questions. Tomorrow I'll follow up with some reflections on what they say about our system of constitutional litigation.
Posted by Mike Dorf