Legal Commentary

The Impact of Litigation on Prospects for Gay Marriage

By Ilya Somin

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.

Full post as published by The Volokh Conspiracy on January 10, 2010 (boomark / email).