Avoidance Strategy: Same-Sex Marriage Litigation and the Federal Courts

This brief article examines the strategy of avoiding federal court review and federal constitutional claims for same-sex marriage. It first surveys the history of same-sex marriage litigation in the federal courts. It then turns to the question of why federal courts and claims have been avoided, identifying the most obvious explanation - a conscious strategic aim. The conclusions discussed in that section are exemplified in recent litigation in the Ninth Circuit. The article concludes with some comments on the policy implications of the strategy it describes