Demagogue

Landmark civil rights cases have frequently been the product of years, even decades, of incremental progress and the execution of a long-term strategy to lay the groundwork for the final victory. The NAACP's fight against segregation under Thurgood Marshall's leadership is a model of picking which cases to bring, which courts to bring them in, which plaintiffs to get, and how to chip away until the time is right for the grand coup. A more recent example is the successful strategy that took LGBT groups from the 1986 Batson decision upholding anti-sodomy laws to the 2003 Lawrence decision overturning them. [update: Matt, in the comments, points out that I mistakenly typed Batson--a case barring prosecutors from peremptorily striking jurors on the basis of race (and that itself overturned a 20-year-old precedent)--when I meant Bowers, the case upholding Georgia's criminal sodomy statute]

One problem with this approach is that the courts are open to all comers. They are not designed to make broad policy prescriptions, though of course they do sometimes make policy intentionally or as a side-effect of deciding cases, particularly at the appellate and Supreme Court levels. Principally, they're there to adjudicate the rights and duties of particular individuals (or corporations) in a particular set of cirumstances. Thus, any black person who felt aggrieved by segregation could have brought a case at any time trying to overturn Plessy; one of Marshall's great successes was getting everyone to fall into line with his plan and not start cases that he didn't want brought. But if people believe their rights are being violated, and if their lives are affected by it, they must have the right to go to court when they want, without regard for "the movement's" grand plan.

Right now, the marriage equality folks are facing that situation, and it's led to an uncomfortable--to say the least--situation. An Orange County, California couple has filed a suit in federal court challenging the constitutionality of both the federal Defense [sic] of Marriage Act and California's state ban on same-sex marriage. The organized marriage equality movement doesn't want to go to federal court right now, first because they think that state courts (in selected states) are more likely to side with them, and second because they don't want bad precedents set in the federal circuit courts, or, worse, in the Supreme Court.

So in California, Lambda Legal has come on the government's side. They're not arguing that the laws are constitutional, of course. They're arguing that the federal court should abstain from deciding, an argument the state has also made.

Abstention doctrines are associated with a radical school of judicial restraint originated by Felix Frankfurter and his acolytes among later generations of Harvard Law School professors. Frankfurter was a lefty whose early career was spent being frustrated by conservative federal judges who struck down social and economic legislation, enjoined strikes, and generally meddled where Frankfurter didn't want them meddling. So Frankfurter not only thought courts in general should stay out of the political fray, but he particularly wanted federal courts to butt out and, if something had to be resolved judicially, let the state courts do it. There are a variety of abstention doctrines that define the exceptional circumstances in which a federal court, even though it has jurisdiction over a case, should refrain from deciding it. I assume Lambda is arguing for some variant of Pullman abstention, named for a case authored by Frankfurter that said that when a state law is challenged as violating the federal Constitution, and interpreting what the state law actually means will be an important step in figuring out whether it's constitutional, federal courts should abstain and let the plaintiff refile the case in state court. The state courts, after all, are the authoritative interpreters of state statutes.

The civil rights movement, which traditionally much preferred federal courts to state courts, particularly in the South, abhorred abstention. For a civil rights group to be pushing abstention and trying to deny a federal forum to a gay couple asserting their rights under the federal Constitution is at best anomalous. But if Thurgood Marshall is spinning in his grave, he's probably spinning slowly.