Two lawyers who squared off in the legal battle over the 2000 US presidential election teamed up on Wednesday to challenge California’s gay marriage ban in a move that, if successful, would allow same-sex couples to wed anywhere in the US.
The lawsuit, filed on behalf of two same-sex California couples barred from marrying under the voter-approved ban known as Proposition 8, puts them at odds with gay rights advocates who see a federal court challenge as too risky and fear a loss in the US Supreme Court.
Lawyers Ted Olson and David Boies, who opposed each other in the Bush v. Gore US Supreme Court case that put former US president George W. Bush in the White House, said that gay people who cannot marry were turned into second-class citizens by Proposition 8 in violation of the US Constitution.
Olson represented Bush and Boies represented former US vice president Al Gore in the case that settled the disputed 2000 election.
If this lawsuit prevails, it would establish the right of gay couples to marry as the law of the land, upending laws in many US states that specifically prohibit same-sex marriage.
Five of the 50 US states have legalized gay marriage. Opponents, including many religious conservatives, see gay marriage as a threat to the “traditional family.”
California’s Supreme Court on Tuesday upheld Proposition 8, which defines marriage exclusively as between a man and a woman, as a valid amendment to the state’s constitution. The same court last May struck down a state law prohibiting same-sex marriage, opening the way for an estimated 18,000 gay couples to wed before the proposition was approved by California voters in November.
‘FUNDAMENTAL RIGHT’
“This case is about equal rights guaranteed every American under the United States Constitution,” Olson, who served as US solicitor general under Bush, said in Los Angeles. “For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy.”
The lawsuit was brought on Friday before the California high court ruling. On Wednesday, the lawyers filed a request for a federal court order to lift the ban and allow same-sex marriages to continue until the case is resolved.
Andrew Pugno, one of the lawyers who successfully defended Proposition 8 in state court, said the will of the voters was under attack.
“This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding,” he said.
Many conservatives oppose gay marriage while many liberals support it. Boies and Olson cast the debate in nonpartisan terms.
“We come from different parts of the political spectrum. But I think Republicans and Democrats, conservatives and liberals, all recognize the importance of equal rights guaranteed by the Constitution,” Boies said. “This is a civil rights issue. A big one.”
WARY
But gay rights activists are wary.
“A federal lawsuit at this time is terribly risky,” said Jenny Pizer, one of the lawyers for Lambda Legal Marriage Project who argued against Prop 8 before the California court.
Her organization, the American Civil Liberties Union and others said in a statement that “without more groundwork, the US Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage.”
Olson and Boies disagreed, saying federal courts were ready to affirm marriage rights on the basis of sexual orientation.
Olson said there were a number of decisions by the US Supreme Court that help this case, including the high court’s 1967 ruling that struck down a Virginia statute prohibiting couples of different races from being married.
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