Bush-Gore lawyers file Proposition 8 challenge in federal court

[JURIST] Former US solicitor general Ted Olson and prominent litigator David Boies [professional profiles] announced [video] Wednesday that they have filed suit [complaint, PDF; motion for injunction, PDF] challenging California's constitutional amendment banning same-sex marriage [JURIST news archive], Proposition 8 [text, PDF], on federal constitutional grounds. The complaint, filed Friday in the US District Court for the Northern District of California [official website], seeks to enjoin enforcement of the ban on the grounds that California state officials, including Governor Arnold Schwarzenegger and Attorney General Edmund Brown [official websites], would be liable under 42 USC § 1983 [text] for violating the Due Process and Equal Protection Clauses of the Fourteenth Amendment [text] if they were to restrict civil marriages to those "between a man and a woman." The complaint alleges that denying same-sex couples the right to marry is a Fourteenth Amendment violation because it stigmatizes gay and lesbian couples by creating "separate but unequal" domestic partnerships designation, and because it "treats similarly-situated people differently by providing civil marriage to heterosexual couples, but not to gay and lesbian couples." Quoting the Supreme Court's landmark interracial marriage ruling in Loving v. Virginia [opinion], the complaint says that the:

Plaintiffs’ inability to have their relationship recognized by the State with the dignity and respect accorded to married opposite-sex couples has caused them significant hardship, including but not limited to the deprivation of rights guaranteed by the Fourteenth Amendment and severe humiliation, emotional distress, pain, suffering, psychological harm, and stigma. Marriage is a supremely important social institution, and the "freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."
Olson and Boies, who brought the suit in conjunction with the American Foundation for Equal Rights [advocacy website], were opposing counsel in Bush v. Gore [opinion], which decided the outcome of the contested 2000 US Presidential election [JURIST backgrounder]. Olson represented then-Governor George W. Bush [official profile], while Boies served as lead counsel to then-Vice President Al Gore [personal website]. A group of gay rights and legal organizations, including the American Civil Liberties Union, GLAD and Lambda Legal [official websites], have cautioned against pursuing federal court action [statement, PDF] because "the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states."

The federal challenge was announced after the California Supreme Court [official website] ruled [opinion, PDF; JURIST report] Tuesday that state law challenges to the ban lacked merit. Proposition 8, approved by voters [JURIST report] in November, was a response to the California Supreme Court's decision last year striking down [JURIST report] a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution. The amendment has become a focal point for gay rights, prompting donors from across the US and several foreign countries to contribute $83 million in total for both sides of the issue, setting US fundraising records [JURIST report].


 

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