What if you know you could win a suit — to have a state law or a provision in a state constitution that's against you declared unconstitutional under the U. S. Constitution? Should you always file the suit?
As you might expect, I wouldn't be asking the question if the answer would be: “Always file a suit if you're going to win.”
The question of whether to file is coming up in the gay rights arena. The November 12 edition of the New York Times has a lengthy article about the issue. Following its headline of “Caution in Court for Gay Rights Group,” is the article's lead paragraph:
“Fearful that aggressive action could backfire and generate public hostility, gay rights groups are planning to limit the scope of their legal challenges to the constitutional amendments banning gay marriage that were passed by 11 states last week.”
After describing the potential backlash if the groups would win the suits, the article continues:
“So challenging the new state amendments by arguing that gays have the right to marry under the federal Constitution is unlikely anytime soon. Instead, gay rights groups will move cautiously, mostly on procedural matters in states whose measures appear to infringe on civil unions and benefits for same-sex couples.”
The article, continuing, quotes Matthew Coles, the director of the American Civil Liberties Union's lesbian and gay rights project:
“ ‘The consequences - the risks - of losing are great,’ Mr. Coles said. ‘And we're unprepared for the consequences of winning.’ In his eyes, he said, winning in court too soon could mean losing in the court of public opinion, in Congress and under the United States Constitution.”
The article adds that, according to gay rights leaders, “the challenge is to change public attitudes.”
(The full article is free after registration for 7 days from the date of the article.)