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Thursday, May 28, 2009

Courts - "Bush v. Gore Foes Join to Fight Gay Marriage Ban "

In the wake of the failure of the California Supreme Court to throw out the Prop 8 ban on same-sex marriage (see ILB entry from May 26th here), a surprising combo of two highly respected litigators has filed a federal court challenge to the ban on federal constitutional grounds.

Jesse McKinley reports the story today in the NY Times. Some quotes:

SAN FRANCISCO — The David and Ted show is back in business.

Eight and a half years after their epic partisan battle over the fate of the 2000 presidential election, the lawyers David Boies and Theodore B. Olson appeared on the same team on Wednesday as co-counsel in a federal lawsuit that has nothing to do with hanging chads, butterfly ballots or Electoral College votes.

Their mutual goal: overturning Proposition 8, California’s freshly affirmed ban on same-sex marriage. It is a fight that jolted many gay rights advocates — and irritated more than a few — but that Mr. Boies and Mr. Olson said was important enough to, temporarily at least, set aside their political differences.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

Not everyone in the gay rights movement, however, was thrilled by the sudden intervention of the two limelight-grabbing but otherwise untested players in the bruising battle over Proposition 8. Some expressed confusion at the men’s motives and outright annoyance at the possibility that a loss before the Supreme Court could spoil the chances of future lawsuits on behalf of same-sex marriage.

“It’s not something that didn’t occur to us,” Matt Coles, the director of the LGBT project at the American Civil Liberties Union, said of filing a federal lawsuit. “Federal court? Wow. Never thought of that.”

But Mr. Olson said that their lawsuit — which also seeks an injunction blocking the marriage ban until the matter can be resolved — fell squarely in the tradition of landmark cases like Brown v. Board of Education.

“Creating a second class of citizens is discrimination, plain and simple,” said Mr. Olson, who served as solicitor general under Mr. Bush. “The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it.”

In a telephone interview, Mr. Olson outlined a possible legal strategy: “if the preliminary injunction is denied, we could appeal promptly to the Ninth Circuit Court,” a level below the Supreme Court. Depending on decisions there, the case could go even higher. * * *

“We think its risky and premature,” said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles, adding that a loss at the Supreme Court level could take decades to undo. * * *

Ms. Pizer also seemed a touch befuddled by her starrier, more publicized colleagues’ unexpected interest in issues she has spent her professional life arguing. “We have developed these strategies from working on these issues for decades,” she said. “And our strategy grows from that work.”

But Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”

Lyle Denniston of SCOTUSBlog had an entry on the lawsuit yesterday afternoon. Some quotes, but read the whole entry:
In a new move seeking to put the same-sex marriage issue on a path to the Supreme Court, two gay couples in California have launched an effort to win a right to wed under the U.S. Constitution. They asked a federal judge in California on Thursday to block any enforcement of California’s “Proposition 8″ — a state constitutional amendment that denies marriage to same-sex couples. The request on Thursday for an injunction followed the filing last Friday of an underlying lawsuit spelling out their constitutional claims. * * *

The motion for an injunction in Perry, et al., v. Schwarzenegger, et al., can be found here. The case is docketed in the Northern District of California as 09-2292. The complaint filed last week is here. The case has been assigned to Chief Judge Vaughn Walker.

The plea to block Proposition 8 was filed one day after the California Supreme Court had upheld that voter-approved measure, which overturned an earlier ruling by the state’s highest court allowing same-sex couples to marry. Both of the rulings by the state court were based only on California law, so neither raised an issue under a federal law or the U.S. Constitution and thus could not be tested in a federal court.

But in the new lawsuit in federal court, the two gay couples based their claims solely on the national Constitution. They claimed that Proposition 8, by singling out same-sex couples for denial of the right to civil marriage, violated their rights to due process and to legal equality.

[More] "Olson, Boies Unite to Fight Calif. Same-Sex Marriage Ban in Federal Court: Conservative lawyer and liberal colleague challenge Proposition 8 on federal equal protection grounds," a story by Mike McKee, appears in The Recorder today.

Posted by Marcia Oddi on May 28, 2009 07:41 AM
Posted to Courts in general