Gay Marriage Fight Goes Federal


Last night I was alerted by one of our readers (Rome) via a comment on my last Proposition 8 article that the fight for gay marriage equality is now going Federal! (Thanks Rome for the awesome information!)

Former U.S. Solicitor General Theodore B. Olson & Attorney David Boies, who argued against each other in the Bush vs. Gore contested election, announced yesterday that they are bringing fight against Proposition 8 to the federal level. The two high profile lawyers held a press conference yesterday announcing that, they (as The American Foundation for Equal Rights) have filed a federal lawsuit against Proposition 8. The case was filed in U.S. Discrict Court in northern California and asked for an immediate injunction against Prop. 8 until the federal court is resolved.

Olson, a prominent Republican says, “It’s not about liberal or conservative, Democrat or Republican. We’re here in part to symbolize that. This case is about the equal rights guaranteed to every American under the United States constitution… For too long, gay men and lesbians who seek stable committed, loving relationships within the institution of marriage have been denied that fundamental right.”

He also indicates that he asked Boies, a Democrat, to join his team to present “a united front” in the suit filed on behalf of two same-sex couples who wish to be married but, because of Proposition 8, have been denied licenses.

“Our Constitution guarantees every American the right to be treated equally under the law,” Boies said. “There is no right more fundamental than the right to marry the person that you love and to raise a family.”

“The courts exist to reverse injustices,” he added “This is not a question of state law. It’s a question of federal Constitutional law.”

At the press conference, the two were quizzed by the LGBT community about their motives behind the lawsuit since neither have historically been considered “pro-gay”. They were asked about why it is a federal case, if they have any gay family members, the lawsuit of the timing, etc…

The Washington Examiner quotes Olson:

“I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions. I thought their cause was just. It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution. The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”

Mr. Olson- we couldn’t agree more!

My good friend David’s boyfriend, who is a lawyer, also made an interesting point this morning:

[Theodore Olson] was actually awarded the spot of Solicitor General under Bush, the SG is, for lack of a better explanation, the President’s attorney for cases before the supreme court. They are in front of the Supreme Court more than any other lawyer. For example, Ken Starr was George Bush Sr.’s Solicitor General.

This is huge since Justice Kennedy is likely to be the swing vote if the case ever makes it to the Supreme Court. He is unpredictable, but having such a staunch conservative lawyer arguing in partnership with a staunch liberal lawyer together saying that Proposition 8 violates a whole host of constitutional issues [will be very effective]. [They assert that upholding Proposition 8 commits] 14th amendment Due Process violations, 14th amendment Equal Protection violations, violates the precedent in Loving v. Virginia that Marriage is a fundamental right (the case dealt with a law that disallowed opposite race marriages). etc.”

They are hitting this from ALL angles.

On the other side of the debate, some supporters of gay marriage are warning that a federal lawsuit could set the fight for marriage equality back. The group Freedom to Marry, along with a coatilition of LGBT groups, issued a press release with a new publication entitled “Why the ballot box and not the courts should be the next step on marriage in California, saying, “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.”

Either way, it’s clear that the fight for marriage equality in California, and the U.S. as a whole, is FAR from over. Equality will come.

Since the announcement of the California Supreme Court’s decision to uphold Proposition 8, we’ve seen so many wonderful things taking place. Whether it’s rallies, protests, articles, or this lawsuit- people are mobilizing, getting energized and gearing up to bring the fight! Two of the most inspiring things that have been passed my way are an article by Rob Thomas, titled “The Big Gay Chip on My Shoulder” and the video of a non-violent civil disobediance protest that took place in California. Read Rob Thomas’ article… it’s brilliantly written and makes some excellent points, and watch the short video below. I guarantee it’ll leave you feeling more positive and ready to do whatever it takes to bring marriage equality to California and the United States as a nation.

  • Great post Kevin! 🙂 We have much to look forward to for the rest of 2009 and 2010. Change will come!

  • Matt

    Yikes…I’m with Freedom to Marry. I don’t think that the US Supreme Court is ready to recognize this civil/human right of ours, and a decision against us could set us back for years. Look how long Roe v. Wade has set back the pro-lifers… I agree that equality will come, but pushing it to the Supreme Court before the court is ready to treat us fairly could be devastating to the cause.

  • Kevin, thanks for the quick article write-up and update! I was very excited to read the news last night and had to share it with ya – but kudos belong to my friend Jeremy in Chicago who passed the news on.

    I wonder if the US Supreme Court can throw this lawsuit out though. Olson and Boies used the analogy of the civil rights movement and the court ruling of 1967 which allowed inter-racial couples to marry. While it was the RIGHT thing to do in 1967, the courts had no choice otherwise. Marriage was defined as being between a man and a woman . It said nothing about race (nor should it). I suspect that the nay-sayers argued back in ’67 that Blacks were neither men nor women. Thank goodness for human evolution.

    But fastforward now to 2009. I wonder if the US Supreme Court can throw this case out because there are still many who define marriage as being between a man and a woman.

    With that in mind, I can see why Matt and organizations like Freedom to Marry may be hesitant in bringing this case forward federally.

    However, I offer this: Language is said to be fluid. It is constantly evolving and changing. As do attitudes and people’s understandings. Traditional words can broaden their meaning and scope to encompass the current climate. If language and society were not fluid, could you imagine where we would be today? The Bible lists a slew of things that society can and ought to do, however, there are many things that Christians and non-believers no longer practice for very sensible reasons ie: stoning one’s wife, marrying one’s dead-brother’s wife, selling one’s daughter into slavery, and not eating shellfish.

    Not sure how to embed a video, but found this one on

  • Sean

    Something to consider that people often forget or don’t think about ….

    There could be a huge Equal Protection debate in regards to gender. The Supreme Court has put homosexuals in a lower protected class, they get what is called ‘Rationality Review’, the same review that poor people get or immigrants get. However, if the argument can be shifted into a gender argument, the review becomes tougher and the laws became more favorable.
    For example, if there is a law that discriminates against women, it will more likely be struck down than if it discriminates homosexuals. That is simply how the courts have framed the priority. The MOST protected class is race.

    Anyway, my point is, there could be a gender argument made here too. Because, when it comes down to it, isn’t the concept of disallowing same sex marriage all about gender? You don’t have to be a homosexual to have a same sex marriage, nor are homosexuals disallowed the right to marry someone of the opposite sex.

    So if the argument can be framed into a gender equality argument, then the bar will be raised for the state!

    Just a side… 🙂

  • Rome

    Sean, good point. You never know when a straight man will want to marry his gay best non-US resident friend in order to keep him in the country.

    Food for thought!