The Legal Mobilization Dilemma

Perry v. Brown, the federal lawsuit challenging Proposition 8--the California state constitutional amendment prohibiting marriage for same-sex couples--was filed in 2009. At that time, it presented sweeping federal constitutional claims for marriage equality and sought to ultimately put those claims before the U.S. Supreme Court. The suit defied the strategic vision of lawyers at the leading lesbian, gay, bisexual, and transgender (LGBT) legal organizations--Lambda Legal, the American Civil Liberties Union (ACLU), the National Center for Lesbian Rights (NCLR), and Gay & Lesbian Advocates & Defenders (GLAD). Those lawyers had attempted to keep the federal courts away from Proposition 8 and similar state laws.

Yet a new organization, the American Foundation for Equal Rights (AFER), filed the Perry suit. AFER's effort boasted considerable support from elites and operated within an increasingly favorable legal and political environment.