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Religious Tolerance logo

Efforts to overturn Prop. 8

Launching the lawsuit
Perry v. Schwarzenegger

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Challenging Prop. 8 in federal court:

In one respect, the outcome of this lawsuit in district court is not too important. Whichever side loses is certain to appeal the decision. The appeals will undoubtedly continue until the case is heard by the U.S. Supreme Court. Both sides are involved in a high-stakes operation and are in the fight for the long haul.

At first glance, this path appears attractive to those favoring marriage equality, and a major threat to those wishing to restrict marriage as a special privilege of opposite-sex couples. There are at least three rulings by the U.S. Supreme Court that are somewhat related to SSM. Each might give some guidance as to how the court might rule on a constitutional challenge to Prop. 8.

If the U.S. Supreme Court were to declare Prop 8 to be unconstitutional then all of the various defense of marriage acts and constitutional changes (DOMA) at the state and federal level might also be found to unconstitutional. The lawsuit could be similar to the Loving v. Virginia case in 1967 which redefined marriage across the U.S. to include inter-racial couples.

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The risks of a federal lawsuit:

Groups promoting civil rights and marriage equality have historically avoided involving the federal courts in their drive for SSM. They have preferred to work through state legislatures and state courts.

The federal court system leads to the U.S. Supreme Court, where strict constructionist Justices Alito, Roberts, Scalia, and Thomas tend to vote as a conservative block. They can be expected to vote against any court case that could grant equality to gays, lesbians and bisexuals. Unless the remaining five justices all voted for SSM, Prop. 8 would be declared constitutional. That, in turn, could seriously set back the gay-rights movement. In order to legalize SSM by court action in the future, it would be necessary to convince the Supreme Court of the validity of SSM as a human rights matter, and convince the court that they had earlier made an error.

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Lawsuit before the California District Court:


2009-MAY-22: Theodore B. Olson and David Boies have filed a lawsuit on behalf of two lesbian and gay California couples: Kristin Perry & Sandra Stier of Berkeley,  and Paul Katami & Jeffrey Zarrillo of Burbank. It claims that Prop. 8 violates both the due process clause and the equal protection clause of the 14th Amendment of the U.S. Constitution.

Olson was George W. Bush's former solicitor general between 2001 and 2004, Boies is an accomplished trial lawyer. They argued opposing sides in the year 2000 Bush vs. Gore lawsuit before the U.S. Supreme Court.

Olson, referring to domestic partnership legislation in California said: "Creating a second class of citizens is discrimination plain and simple. Proposition 8 denies people fundamental constitutional rights." 1

He also said in an interview with The Advocate:

"For a long time I've personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals. The individuals that we represent and will be representing in this case feel they're being denied their rights. And they're entitled to have a court vindicate those rights. [Recent decisions by the U.S. Supreme Court] make it clear that individuals are entitled to be treated equally under the Constitution. I'm reasonably confident that this is the right time for these [injustices] to be vindicated." 2

This lawsuit represents quite a reversal for Olson. Mat Staver, founder of the fundamentalist Christian advocacy group Liberty Counsel said that Olson's involvement in the lawsuit absolutely disgusts him. Staver said of Olson's support for marriage equality:

"In fact he was someone that George Bush had potentially considered as a U.S. Supreme Court justice. I was never fully in favor of that opinion, and fortunately we never had to come to that point in time. Obviously what we now see is that he's gone off the deep end."

Staver notes that Jerry Brown, the attorney general of California,:

"... has essentially conceded in his view that there is a federal constitutional right to same sex marriage. So the state is not going to defend ... [Prop. 8]. And if the state's not going to defend it, then who will?"

The American Foundation for Equal Rights is funding the lawsuit against Prop. 8. 3


bullet2009-MAY-27: The American Foundation for Equal Rights held a press conference:


bullet2009-JUL-2: The lawsuit is scheduled to be heard in the California District Court. 1 A San Francisco judge has placed the lawsuit on a fast-tract to trial.

bullet2009-JUL-09: Three groups that were active in the attempt to defeat Prop. 8 vote in 2008-NOV -- American Civil Liberties Union, Lambda Legal, and the National Center for Lesbian Rights -- have asked to be part of the current lawsuit to declare Prop. 8 unconstitutional. The two lawyers who initiated the lawsuit oppose adding the three additional parties because they feel it would delay and unnecessarily complicate the case. 4

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The case continues

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Prop 8 under legal attack again," OneNewsNow, 2009-JUN-26, at: http://www.onenewsnow.com/
  2. Andrew Harmon, "Prop. 8 Challenge Filed in Federal Court," The Advocate, 2009-MAY-26, at: http://www.advocate.com/
  3. The American Foundation for Equal Rights has a website at: http://equalrightsfoundation.org/
  4. "Gay legal groups want in on Calif. court case," Associated Press, 2009-JUL-08, at: http://www.google.com/

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Site navigation:

Home page > "Hot" topics > Homosexuality > Couples > California > here

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Copyright © 2009 & 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2009-JUL-03
Latest update: 2010-JAN-11
Author: B.A. Robinson

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