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.
The risks of a federal lawsuit:
Groups promoting civil rights and marriage equality have
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.
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
due process clause and the equal protection clause of the 14th Amendment of the
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.
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
2009-MAY-27: The American Foundation for Equal Rights held a press
2009-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.
2009-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