2000 Election Adversaries Team Up on Prop 8

Two attorneys who squared off in the legal battle that decided the 2000 presidential election said Wednesday that a federal lawsuit they filed in hopes of overturning the Proposition 8 ban on same-sex marriage in California was prompted by a desire to ensure rights for all citizens.

"Courts exist to reverse injustices," attorney David Boies told reporters in downtown Los Angeles, where they discussed the case. "This lawsuit is about the concept of equal rights and justice under the law. The federal constitution was created to prevent states from infringing on individual rights."

Boies and attorney Theodore B. Olson filed the lawsuit in U.S. District Court in San Francisco against Gov. Arnold Schwarzenegger, Attorney General Jerry Brown and other state officials on behalf of two gay men and two lesbian women who wish to be married in California. The complaint argues that the voter-enacted proposition violates the U.S. constitutional guarantee of equal protection and due process.

The complaint also asks for an injunction blocking Proposition 8 until the case is resolved -- immediately reinstating marriage rights for same-sex couples. The suit contends that Prop. 8 creates a group of  "second-class citizens" and thereby violates the U.S. Constitution.

But not all civil rights groups agree with the lawsuit.

The American Civil Liberties Union, Lambda Legal and other national organizations said Wednesday they think the U.S. Supreme Court is not likely to rule in their favor on the issue.

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights.


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But Olson insisted the time is right for a federal challenge.

"Both David and I have studied the court for more years than probably either one of us would like to admit," the attorney said. "We think we know what we are doing."

Supporters of the same-sex marriage ban said they are ready to fight all attempts to overturn Proposition 8 and reverse Tuesday's decision by the California Supreme Court, which upheld the proposition and ruled it legally amended the state's constitution.

"The will of the voters is under attack again," said Andrew Pugno of ProtectMarriage.com. "This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding. But we will take it seriously and take action to provide a vigorous defense of Prop. 8, just as we did in the California courts."

An initial hearing in the case is set for July 2 in San Francisco.

In May 2008, the California Supreme Court ruled that a state law prohibiting same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California constitution. Prop. 8 was passed by voters in November, amending the state constitution to eliminate the right of same-sex couples to wed.

Olson, a former U.S. Solicitor General, represented future President George W. Bush in the legal challenge over the disputed 2000 presidential election. Boies represented then-Vice President Al Gore in that action.

Boies said that while he and Olson are from different ends of the political spectrum, "we are fighting this case together because Prop. 8 clearly and fundamentally violates the freedoms guaranteed to all of us."

"Every American has a right to full equality under the law," he said. "Same-sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to second-class status."

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