Rebuffed by the California Supreme Court upholding Proposition 8 two lawyers filed an injunction calling for an immediate reinstatement of marriage rights for same-sex couples while this issue appears to be headed to federal court.
The lawsuit was filed May 22, several days before the California State Supreme Court upheld the marriage amendment by affirming its constitutionality. The case, filed by former Bush Solicitor General Ted Olson and David Boies, a former lawyer for Gore, alleges the state constitution's ban of same-sex marriage violates the U.S. Constitution.
Andy Pugno, general counsel for the Protect Marriage coalition that supported Proposition 8, said the new federal suit is based on "highly questionable grounds" since there is no federal right to same-sex marriage under the U.S. Constitution.
"We are treating this case seriously," Pugno said, adding that he is filing a motion to intervene in the case, a similar step he took with the California high court.
"Without our intervention, the entire legal defense of Prop. 8 in the federal court will fall upon the California Attorney General, a troubling prospect since he has stated firmly that he believes that Prop. 8 is unconstitutional and should be invalidated," Pugno said. "We are optimistic that the federal court will allow us to intervene and provide a legal defense for Prop 8."
Ironically, numerous gay rights groups are unhappy with the Olson-Boies suit, saying it could jeopardize a long-held plan to win same-sex marriage rights state by state.
"We have only one shot at the U.S. Supreme Court, and any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a very heavy responsibility to be certain they have fully considered the consequences," Shannon Minter, of the National Center for Lesbian Rights and who served as lead counsel for the Prop. 8 challenge, said in an e-mail statement.
The Alliance Defense Fund (ADF) has filed court documents asking U.S. District Judge Vaughn Walker to allow ADF to defend the constitutionality of Proposition 8.
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 state Constitution.
But in November 2009, voters passed Prop 8, amending the state Constitution to define marriage to between one man and one woman. The high court upheld the voter initiative in a 6-1 ruling May 26, 2009, with Justice Carlos Moreno dissenting.
An initial hearing in this new case will be held in July.