After New Jersey defeat, gay marriage advocates turn to courts

That initial opposition to the lawsuit filed by two high-profile lawyers, who argued on opposite sides of the Bush v. Gore 2000 Supreme Court case, has since softened.

One of the lawyers in the case, Theodore Olson, told Time magazine, “[O]ur clients were made fully aware of the risks and chose to go forward. For them, the status quo is already failure. We had every reason to believe that someone was going to bring this case in any event – without the resources or experience that we can assemble.”

Courts have often been more willing to extend marriage rights to same-sex couples. It was the courts that made gay marriage legal in Massachusetts, Iowa, and Connecticut, although legislatures in Vermont and New Hampshire have enacted same-sex marriage laws. In the District of Colombia, the city council voted to legalize gay marriage.

“Often we are able to ensure constitutional protections in courts before legislatures because we are a small minority,” says Jennifer Pizer, senior counsel and Marriage Project Director for Lambda Legal, a gay and lesbian rights group.

But in other states, such as California and Hawaii, courts have ruled against gay marriage.

Most still oppose gay marriage

Some legal experts say the gay rights movement has a lot at risk if the case against Proposition 8 goes to the Supreme Court before a majority of states – and Americans – accept gay marriage. The Supreme Court is often reluctant to be too far ahead of national attitudes, they say.

Though many polls show a growing acceptance for same-sex relationships, an October 2009 Pew Research poll found that 53 percent of Americans oppose gay marriage. Thirty-one states have voted against same-sex marriage at the polls.

“The reason that you don’t turn back to the courts too soon is that this can’t be a project of the legal elite,” says Marc Spindelman, a law professor at Ohio State University. “When the citizenry don’t recognize themselves in the [decision], there’s the potential for backlash.”

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