NOTE: This entry was made by the co-founder and former president of Kentucky Equality Federation, Jordan Palmer. This entry may not conform to our editorial standards. This entry has been approved by an editor or moderator.

Kentucky Equality Federation graphic. All Rights Reserved. Used with permission.

The legal battle over same-sex marriage is far from over, both sides have said so.  Remember last year when the leaders of major gay rights organizations issued a plea urging people not to make Prop 8 a federal issue? Though I have fought for LGBTI equality and marriage equality for years, these organizations had good reasons for issuing their plea. Both national and state leaders listed their reasons for issuing the plea — the battle must we waged within the states.

Most legal scholars agree that the federal government cannot impose a definition of marriage onto the laws of the various states.

In 1971, the Minnesota Supreme Court ruled that Minnesota law limited marriage to opposite-sex couples, and that this limitation did not violate the United States Constitution. The plaintiffs appealed, and the United States Supreme Court, 409 U.S. 810 (1972), dismissed the appeal “for want of [a] substantial federal question,” meaning the U.S. Supreme Court lacked the authority to rule or override the Minnesota Supreme Court. That dismissal by the Supreme Court of the United States constituted a decision on the merits, and established Baker v. Nelson as the controlling precedent as a matter of federal constitutional law on the absence of federal authority regarding same-sex marriage.

Historically, the U.S. Supreme Court does not get too far ahead of either public opinion or the law in the majority of states (in which case same-sex marriage is overwhelmingly illegal).

Organizations Made Plea Not to Make Prop 8 a Federal Issue

Nine gay and civil liberties organizations – including the American Civil Liberties Union, the Human Rights Campaign, the National Center for Lesbian Rights and Lambda Legal – said “even the strongest gay-rights decision the court has issued – the Lawrence v. Texas case striking down laws against intimacy for gay couples – explicitly commented that it was not saying anything about formal recognition of same-sex relationships.”

SPECIAL NOTE: Credit to the Kentucky Supreme Court who struck down sodomy laws over 10 years before the U.S. Supreme Court heard the Lawrence v. Texas case (2003). The Kentucky Supreme Court struck down laws against intimacy for gay couples back in 1992 (Wasson v. the Commonwealth of Kentucky).

What prominent LGBTI organizations said last year about a federal lawsuit:

• Evan Wolfson of the GLBT equality group Freedom to Marry sent out a May 27 press release that stated, “In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back.”

• Law professor John Oakley of the University of California called the suit “a silly and rash act.”

• “It’s an enormous intellectual exercise against the biggest legal opponent in the country—the United States government,” said Lambda Legal’s Jennifer Pizer.

• “Successful change involves building blocks,” Matt Coles, director of ACLU’s LGBT project, told the Wall Street Journal’s law blog. “You build constitutional principles alongside efforts at the societal and legislative levels. They’re jumping over the process and going straight to the end. From where we sit, this is a very high-risk proposition.”

• “In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent,” Shannon Minter, legal director of National Center for Lesbian Rights, told the AP.

NOTE: This entry was made by the co-founder and former president of Kentucky Equality Federation, Jordan Palmer. This entry may not conform to our editorial standards. This entry has been approved by an editor or moderator.