Wednesday, May 27, 2009

Prop 8 Battle Reaches the Federal Level

Hours after California’s top court upheld Proposition 8, a federal lawsuit was filed by the American Foundation for Equal Rights arguing that Prop 8 violates the U.S. constitutional guarantee of equal protection and due process.

Their suit, filed May 22 in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.

The suit was filed by Theodore B. Olson, the U.S. solicitor general from 2001 to 2004 under President George W. Bush and David Boies, a high-profile court lawyer, on behalf of two gay men and two gay women. The two were at odds during the infamous 2000 presidential election representing Bush and Gore respectively but have now teamed up for this case.

The attorneys argue that the equal protection and due process clauses for the Fourteenth Amendment to the U.S. Constitution is being violated by relegating same-sex couples to domestic partnerships instead of granting them full marriage rights.

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

The Advocate goes on to report, "As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court 'make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.'”

Olson told the Associated Press late Tuesday that he hopes the case will wind up before the U.S. Supreme Court.

LA Times says, "The U.S. Supreme Court has what usually results in a 5-4 majority against extending rights to gays by recognizing sexual orientation as a vulnerable class of citizens in need of protection."

Because of this fact, many LGBT organization believe the lawsuit is ill-timed. Today, they issued the following press release.
LGBT Organizations Warn that Lawsuits Could Set Back Progress on Marriage for Same-Sex Couples:

New York, May 27, 2009 - In response to the California Supreme Court decision allowing Prop 8 to stand, four LGBT legal organizations and five other leading national LGBT groups are reminding the LGBT community that ill-timed lawsuits could set the fight for marriage back. The groups released a new publication, "Why the ballot box and not the courts should be the next step on marriage in California." This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage. The groups also revised "Make Change, Not Lawsuits," which was released after the California Supreme Court decision ending the ban on marriage for same-sex couples in California. This publication encourages couples who have legally married to ask friends, neighbors and institutions to honor their marriages, but discourages people from bringing lawsuits.
However, the American Federation Equal Rights held a press conference today stating their intentions to move forward.

Many in the LGBT population are skeptical about the motivations behind Olson and Boies. An email was sent to Pam Spaulding at Pam's House Blend saying, "I smell something very very fishy. . . Is this a 'forcing of the issue' to the SCOTUS by the hard right while they have a stronger chance of winning marriage inequality and before Obama has a chance to alter the court's balance while at the same time having an insider on the plaintiffs' team?"

I would love to think that the U.S. Supreme Court would take this case on and overturn Prop 8. But after yesterday's devastating blow from the CA Supreme Court, the same court that gave us the right to marry in the first place, I'm extremely wary of going the conservative high court.

Freedom to Marry agrees. Read their report, ""Why the ballot box and not the courts should be the next step on marriage in California."

What do you think?

1 comment:

  1. I think I've heard all the bellyaching about the wrong time to seek justice before. We would never have (briefly) had equal marriage rights in California if parties to the lawsuits in the Marriage Cases had heeded the hew and cry that seeking justice from the California courts was similarly ill-timed.

    And while I would prefer a differently-composed U.S. Supreme Court to decide the issue, that guesswork of strategic delay should not be any kind of deciding factor in matters of justice.

    Justice delayed is justice denied, ya know. And all that MLK stuff, too ... i.e., wait, wait, wait is usually code for NEVER.