Olsen, Boies (Opponents in Bush v. Gore) Join in Suing to Overturn Prop 8
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A federal civil rights lawsuit has been filed by David Boies and Ted Olsen, who argued for Al Gore and George W. Bush, respectively, in the historic confrontation over the 2000 Florida recount. They have found common ground in the defense of intellectual honesty regarding the federal civil rights issues caught up in a state stripping individuals of rights other citizens enjoy. Their case argues that the state of California has failed to comply with the equal protection clause of the Constitution of the United States.
Civil liberties groups, including the ACLU and even politically active gay rights groups, have been reticent about taking the fight over same-sex marriage to the federal courts system, due to the fear that the Supreme Court, which has a majority of conservatives (either 5 or 6 out of 9, depending how one counts), might “not be ready” to rule in favor of same-sex marriage. The California Supreme Court (which has already ruled in favor of legalizing same-sex marriage) upholding Prop. 8 is a sign to some of those groups that their fears are well founded.
The lawsuit is an effort by two of the nation’s most prominent attorneys to overturn what they believe is a dangerous usurpation of rights, unfounded in Constitutional law, the use of a referendum to strip a specific group of people of rights to government services the rest of the population enjoys. The announcement, when it was made, was unexpected in part because, as the Houston Chronicle notes, Olsen is a staunch conservative and was a critic of Bill Clinton’s presidency, “known for such controversial deeds as helping to prepare Paula Jones’ attorneys for their Supreme Court appearance”.
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As reported by the Chronicle:
Whether one likes the same-sex marriage right or not, the argument goes, it was found in the California courts to be a fundamental right before the November vote. Although California’s Supreme Court has upheld Prop 8 since November, Olson and Boies argue that the Fourteenth Amendment of the U.S. Constitution protects a minority from having a fundamental right taken away by a vote of the majority.
The suit is being brought by Olsen and Boies, with the power of their respective firms behind them, on behalf of two same-sex couples, two women and two men, at the request of a new organization called the American Foundation for Equal Rights. The AFER has said the foundation of the case is that California’s Proposition 8 violates the US Constitution by creating a “class of second-class citizens”, thus denying equal treatment under the law.
Though there has been skepticism among rights activists that a powerful legal challenge to Prop 8 could backfire, major groups have begun to support the suit. A new brief filed by the ACLU, the National Center for Lesbian Rights and Lambda Legal, argues that:
Proposition 8 denies same-sex couples the right to marry in a unique historical context in which the denial can only be deemed a declaration of inequality. First, Proposition 8 singled out gay and lesbian couples for discriminatory treatment by stripping them of the right to marry in direct response to the California Supreme Court’s recognition that all individuals and couples, regardless of sexual orientation, are entitled to exercise the fundamental right to marry.
Another component to the challenge is that the use of a referendum to establish this “second-class” status for a minority group denies that group’s members their right to “due process”. This means they have not been able to contest the question and have simply been denied equal treatment by an extrajudicial act of the majority.
Now Chief U.S. District Judge Vaughn Walker will hear arguments, on Thursday, as the case gets underway. The Olsen-Boies team will argue that Prop 8 should be blocked, due to all the Constitutional considerations mentioned above.
The Olsen-Boies case is the logical next step in the struggle over California marriage rights, because the California Supreme Court ruled in favor of Prop 8, not on the merits, but only on the point that the justices did not have the authority to overturn a voter-backed amendment to the state constitution. Federal courts do, however, have broader authority to strike down state-level actions that violate fundamental rights guaranteed by the federal Constitution.
Past reporting on same-sex marriage rights, from Café Sentido:
- California Supreme Court Upholds Constitutionality of Prop. 8, which Banned Gay Marriage
- New Hampshire Senate Votes to Allow Same-sex Marriage
- 50-state Rally Shows Record Support for Same-Sex Marriage
- Connecticut Supreme Court Overturns Ban on Same-Sex Marriage
- CA Court strikes down same-sex marriage ban…
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