Don’t Just Sue the Bastards!
A Strategic Approach to Marriage
By Matthew A. Coles
Director, ACLU Lesbian & Gay Rights Project
A lot of people don’t understand why the ACLU and other groups working on equality for LGBT people haven’t just gone into court everywhere to get same-sex couples the ability to marry. But there are good reasons not to do that.
1. If we just sue in as many states as possible, we are likely to lose a lot of the cases.
To get the courts to strike down a law, you have to convince them that the law violates one of the specific rights in either the U.S. or the state Constitution. There are two possible legal arguments we can use in marriage cases: the right to “equal protection,” and the “right to marry.”
Equal protection: Over the years, the Courts have decided that government discrimination against some groups is “suspicious.” They said that because they found there was a long history of treating people in the group differently out of prejudice. Among the kinds of discrimination courts have said are “suspect” are race and sex discrimination. It is very difficult to get a court to strike down a law under equal protection unless the discrimination in the law is considered “suspect.” But odd as it may seem, the U.S. Supreme Court hasn’t decided whether discrimination against gay people is suspicious, and neither have most state Supreme Courts. To make matters worse, most of the lower court cases have said discrimination against gay people is not suspicious.
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The American Civil Liberties Union is looking for gay couples to help us in the fight for marriage equality. Stories of real couples are what put a face on the issue and help change public and legal opinion. Between now and November, your stories can compel voters to say no to discriminatory state constitutional amendments banning same-sex marriage.
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