Legal Commentary

Suppose you -- as constitutionally-sensitive activist -- think that California's gay marriage ban violates the federal Constitution's protection of "equal protection of the laws" -- and think that Romer v. Evans is a close enough precedent to make your view plausible in the eyes of doctrinalists.  Yet you have no faith that the current Supreme Court of the United States will agree with you.  Indeed, you fear prosecuting that claim because of the very real possibility that you will lose at the Supreme Court and hurt your cause quite badly in the process.  Suppose you also think that Prop 8 does not violate the California state constitution (for the state constitution has just been amended).  Indeed, suppose you think the claim that the state constitution has been "revised" borders on the trivial.  Yet you recognize that you might actually win your argument on the "revision" claim.   Are there any ethical limitations surrounding constitutional argument making that would disable you from making what you think is a nearly trivial argument that actually has a chance for success even though it can get you a substantive result you think is demanded by the federal Constitution but which you aren't willing to try for fear of losing big?