In the case of Perry, however, if the court retains the Proposition 8 ban, LGBT rights advocates would be forced to return to the states. With constitutional amendments banning marriage for same-sex couples in a majority of states, advocates would be prevented from seeking reform in state courts and legislatures. Instead, they would in most states face the daunting proposition of trying to gain equal marriage rights at the ballot box. Some states might present reasonable opportunities — indeed, voters in Maine, Maryland and Washington may affirm same-sex couples' right to marry in November — but others remain outside the realm of possibility for many years to come. And a series of ballot initiatives presents an overwhelming financial burden.
Perry provides a more exciting backdrop: a bitterly fought initiative battle, a heroic team of famous ideological rivals, a Hollywood-backed effort, a controversial appellate decision by the 9th Circuit's liberal lion and gestures toward the big question of same-sex couples' fundamental right to marry. But the DOMA cases present a more politically, doctrinally and strategically sensible way forward, and the high court would be wise to start with them. There are other cases like Perry in the pipeline, and the court will no doubt have many opportunities to weigh in on the question of marriage equality.
Douglas NeJaime is an associate professor at Loyola Law School in Los Angeles.