Odds are federal marriage lawsuits could deliver surprise win

The shocker at the Kentucky Derby this year was that a little known horse with 50 to 1 odds came in first. Lawsuits, too, have odds, though not the type that translates into numbers.

They can have a greater chance of success or failure due to which court they are filed in; which judge is randomly assigned to the case; the scope of the issue it challenges; what arguments the lawyers use to make their cases; and, of course, which lawyers have filed the lawsuit and which are lined up to oppose it.

Thus the five lawsuits filed in federal courts seeking marriage rights for same-sex couples face varying odds of success. Ultimately, it will come down to whether the lawyers pushing the cases can convince five members of the Supreme Court to side with them.

LGBT legal activists, who have been very picky about what lawsuits they enter into which courts, have long considered going the federal legal route risky. With a couple of notable exceptions, they have limited their legal action in the past 25 years to state courts, specifically, in states where the overall climate for LGBT people is considered friendly, like Massachusetts, California and Connecticut.

Their thinking, generally, has been that conditions at the U.S. Supreme Court aren’t favorable for winning any pro-gay decisions. But gay legal organizations do not control the field when it comes to gay-related lawsuits. Sometimes, other lawyers mount lawsuits; and sometimes - like during last week’s confirmation hearing for U.S. Supreme Court nominee Sonia Sotomayor - other interested parties try to call the race over, done, and lost.

It was only after much study and deliberation that Boston-based Gay & Lesbian Advocates & Defenders finally mounted a legal challenge this year of the 13-year-old Defense of Marriage Act (DOMA) in federal court. The lawsuit is a very narrow, "very mainstream" challenge, noted lead attorney Mary Bonauto. It tackles only part of one section of DOMA that applies to federal tax laws, Social Security and retirement laws, and other federal benefits available to married couples.