For a long time, the LGBT community has avoided bringing a federal claim regarding marriage equality. That will change tomorrow when Ted Olson, former solicitor general under W, and David Boies, his rival in Bush v. Gore.
In a project of the American Foundation for Equal Rights, Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8.
Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.
The California Supreme Court ruled in May 2008 that state law prohibiting same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution. (LA Times 5/26/09)
Lamda Legal and other national LGBT legal organizations have explicitly stayed away from pressing this in federal court in order to stay away from the conservative federal courts. But, I suppose it had to happen sometime. The likelihood of success seems slim at this point, especially for the injunction. In all likelihood, we’re going to fight Prop 8 at the ballot.
That being said, we are right on the underlying argument: LGBT couples are denied the equal protection of the law.
UPDATE (by Be_Devine): Interestingly, Boies and Olson filed their lawsuit last Friday, before the California Supreme Court even decided the Prop 8 cases. They filed the case in the Northern District of California in San Francisco, and the case was assigned to Judge Vaughn Walker. Judge Walker currently the Chief Judge of the Northern District. He was nominated by President George I in 1989. Reagan nominated him earlier, but his nomination failed. He endured anger from the left because of his membership in the Olympic Club, a private club that was, at the time, all-male and for representing the U.S. Olympic Committee in its suit to stop the use of the term “Gay Olympics.” Judge Walker has, however, publicly called for the legalization of drugs. He is considered a conservative judge, but if anything, he is unorthodox.
UPDATE by Brian: I’ve posted the complaint over the flip. You can also find it here.
boies complaint – Get more Business Documents
Who is the defendant in this case? The state? If the District Court rules that prop 8 is unconstitutional, who would appeal to SCOTUS? The anti-gay marriage groups? If prop 8 was found unconstitutional and the state declined to appeal to SCOTUS, I think that would kill the issue, unless I’m woefully misunderstanding this.
God, I don’t think we should trust anything that Ted Olson is involved in.
Fuck these people … as if we weren’t having a bad enough day already!!
This has so little chance of getting through that I also wonder if the real goal here is to get a definitive ruling against equal marriage. I find myself scratching my head here. This court is simply not going to be receptive to this. Maybe you can get the 9th Circuit to rule in favor (maybe! They’re not the reliable liberals they used to be), but then you have the Supreme Court putting a decision in writing against you. That’s not where we want to be.
Is there something I’m missing here? I agree that this is an equal rights issue, but really, the law is about strategizing, and I am not aware of a discernible strategy here. This may be a case where no recent ruling is better than a bad ruling, especially since momentum and napkin math indicates that a majority of the US population will live in states that recognize equal marriage within a decade. Once you have that, there’s no going back.
The organization’s lead by Chad Griffin, a consultant whose donations are on the cynical power brokerish side, but who came out hard against 8. They won’t name their funding sources, which could be Soros, could be legal/funding/strategy types from both parties who don’t want their clients or other affiliations taking heat, could be a bit of both.
It is a 14th amendment violation. You now have two indistinguishable classes of people (same-sex couples) who have different rights based on when they filed for their marriage licences.
A couple who got married in Iowa and then demands full faith and credit from California might be better. Clearly California’s public policy doesn’t forbid recognizing same-sex marriage, only performing them.
…. any possible legal argument they could come up with. Just not going to happen. They may be looking forward to it, just to provide another smackdown to the “liberal” agenda.
But this ought to provide a fine money making opportunity for the lawyers!
is currently smacking down the government in the Al Haramain warrantless wiretapping case, and may move to invalidate retroactive immunity.
My only real sense of him is through that case, but if he applies the same principles, I can see him being very helpful here. Of course, nothing will end there, the appeal will go all the way to SCOTUS.
What would happen to a federal case if Proposition 8 were to be repealed on November 2, 2010?
With no other states in such a bizarre situation with respect to equal protection (lucky lesbians & gays, heteros, and unlucky lesbians & gays), could it proceed?
Just wondering if we can save ourselves from the risk of a bad precedent by repealing it before it works its way to the Supremes.