The Impact of Litigation on Prospects for Gay Marriage

Like co-bloggers Dale Carpenter and Jonathan Adler, I highly doubt that Ted Olson and David Boies will succeed in their case urging the Supreme Court to declare a federal constitutional right to gay marriage. At the same time, I differ with them somewhat in believing that gay marriage litigation has been a huge net plus for the gay rights cause. I outlined my reasons in this series of posts. The first post in that group explains why pro-gay marriage litigation has been a major gain despite the political backlash against it. The political effectiveness of these lawsuits of course says little about their legal merits. For what it’s worth, I think that the pro-gay marriage position has greater force under some state constitutions than others, especially those that have Equal Rights amendments; but I’m not going to try defend that view in any detail in this post.

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