SAN FRANCISCO -- — With only a few days left before gays can marry in California, nine major gay rights groups asked couples Tuesday not to sue the federal government or other states to have their California nuptials recognized, saying that legal action could harm the marriage equality movement.
In an unusual six-page memorandum, written for same-sex couples, groups ranging from the American Civil Liberties Union to Lambda Legal warned that lawsuits would invite "bad" court rulings that could take years to overturn.
The memo cautioned that the U.S. Supreme Court has traditionally refused to embrace major social change until many states have already acted and that the battle for marriage must be orchestrated strategically, state by state, court by court.
"Bad rulings will make it much more difficult for us to win marriage, and will certainly make it take much longer," the memo said.
Legal experts said the statement appeared to be an effort by groups who have successfully fought for gay marriage in California to maintain control of the litigation and reflected a fear that much of the rest of the country is not yet ready to embrace marriage for gay men and lesbians.
The memo "is a stark recognition of how their efforts have fared in the rest of the country any time the issue has been taken up in the ballot box," said John Eastman, dean of the Chapman University School of Law. "It is a tactical call that they are not quite ready yet in other states and not even in California to deal with the federal issue."
Twenty-seven states have passed constitutional amendments banning gay marriage, and only the high courts of California and Massachusetts have approved it. A ballot measure to reinstate California's marriage ban is headed for the November ballot.
"Eventually the U.S. Supreme Court is going to have to rule on whether states have to recognize same-sex marriages from Massachusetts and California," said Duke University law professor Erwin Chemerinsky. "What they want is to postpone that as long as possible because attitudes are changing quickly, and the more marriage equality gets entrenched, the more it is going to be widely accepted."
If the U.S. Supreme Court considered the federal Defense of Marriage Act, which permits states to refuse to recognize same-sex marriage in other states, the current court would likely split 5 to 4, with Justice Anthony M. Kennedy being an unpredictable swing vote, some scholars believe.
