Now that several days have passed since the U.S. Supreme Court announced that it would hear the Proposition 8 case, Hollingsworth v. Perry, the initial shock has subsided and reality set in. And while most LGBT community leaders publicly speak with confidence about a high court victory next year, it is far from certain. Remember that three and a half years ago, when the American Foundation for Equal Rights first filed its suit, the heads of several LGBT groups were not at all pleased by a strategy to challenge Prop 8 in the federal courts. Some argued that it was not the right time, while others thought that the suits targeting the anti-gay Defense of Marriage Act offered a better outcome in front of the Supreme Court.
Back in 2009, nine of the country's largest LGBT legal organizations issued an unprecedented joint statement that, while not mentioning the Prop 8 suit specifically, was clearly aimed at it because it came within days after high-profile attorneys Theodore Olson and David Boies filed their lawsuit. The joint statement suggested "premature lawsuits based on the federal Constitution" could be "ill-timed."
As the court case proceeded, however, those voices of opposition went silent as the AFER case won at the trial court level and then again at the appeals court level. Suddenly, everyone was on board and the head of AFER, Chad Griffin, was seen as a shrewd player on the national LGBT stage. Griffin made such an impression that he was hired away by the Human Rights Campaign, which he took over earlier this year. Skeptics, who once thought Olson, a conservative, had ulterior motives for taking the Prop 8 case, were eventually persuaded that he genuinely supports marriage equality. The suit was stacked with star power from the start.
But some may be doing a "Gangnam Style" happy dance a little too early. After Friday's court announcement, which caught just about everyone by surprise, some organizations touted that they were "celebrating" the news. It's far from celebratory that the high court decided to hear the case. The justices could have denied review, thus letting stand the appeals court decision that struck down Prop 8. Same-sex couples would have begun marrying in California this week. So, no, it's not a time to celebrate when a court that leans right has decided to hear arguments about whether a voter-approved constitutional amendment can be struck down.
To be sure, a win at the Supreme Court could legalize same-sex marriage across the country, which would indeed be a broad decision affecting hundreds of thousands of same-sex couples. A narrow ruling could result in same-sex marriage only in California, which would itself be a major victory. We are the most populous state in the nation and that would add up to 28 percent of the U.S. population living in a jurisdiction where same-sex couples can marry.
Between now and March, when oral arguments are expected, pundits, legal scholars, and LGBT advocates will be speculating about the justices. But that's all it is – speculation.
No marriages
If the Supreme Court ruling denies marriage equality in California, the logical step would be to return to the ballot in 2014 with an initiative to repeal the state constitutional amendment. Public opinion here and in other states has changed dramatically since the passage of Prop 8 four years ago. It is likely that with a focused campaign, marriage equality would prevail. But who would take the lead on such a campaign, including raising millions of dollars? The only statewide LGBT rights organization, Equality California, currently lacks both the infrastructure and, more importantly, the public confidence to manage such a campaign. Its new executive director just started work this month and acknowledged that the organization is in a "rebuilding" phase.
Same-sex couples can and should continue to speak out about their lives and the importance of marriage equality. That is something that doesn't cost money and is crucial to building public support, both here in California and across the country. The Prop 8 case before the justices carries high risk, but also a high reward.