Thursday, May 28, 2009

Case filed in Federal Court

From The Advocate
In a bold move that takes a new approach to achieving marriage equality, two attorneys who argued opposing sides of the 2000 Bush v. Gore lawsuit before the U.S. Supreme Court have filed a challenge to Proposition 8 in federal court, The Advocate has learned.

Theodore B. Olson, the U.S. solicitor general from 2001 to 2004 under President George W. Bush, and David Boies, a high-profile trial lawyer who argued on behalf of former vice president Al Gore, filed the suit May 22 in U.S. district court on behalf of two California gay couples.

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

More at the Washington Examiner.

h/t to Episcopal Cafe´

AP reports:

Gay groups call federal marriage suit premature

By LISA LEFF – 4 hours ago

SAN FRANCISCO (AP) — A coalition of gay rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready 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.

From Larry Graham on rumors that the filing is a "plot"---
I've previously posted two comments on the California Supreme's ruling. In one of them, I pointed out that either by accident or by design, they had created two classes of similarly situated persons. I went on to say that while marriage is a matter reserved to the states, the equal protection clause of the Constitution is clearly a Federal matter.

And I further pointed out that the parallel to this, insofar as marriage is concerned, is the Supreme Courts' 1967 ruling in Loving vs. Virginia that overturned that state's anti-miscegenation law - and all similar laws in the rest of the other states. That landmark ruling stated clearly that _no_ state, by any means, can deny any class of people equal access to, and protection of the law.

Here in Georgia, for example, the recently adopted constitutional amendment states that marriage in this state can only be between one man and one woman, and then goes on to say that Georgia cannot recognize any purported marriage or domestic partnership established in any other jurisdictions, nor can any Georgia court can hear any matter that touches on any such purported marriage or domestic partnership. That kind of law is exactly what Loving vs Virginia did away with.

I had supposed that, at some point, one or more of the LGBT organizations would file an action in Federal Court under the U. S. Constitution's equal protection clause. However, that has not been their strategy. The strategy of these organizations has been, and is, to chip away at the issue state by state.

Only two days after the Proposition 8 ruling in California, come two straight white male lawyers before the U. S. District Court. One is a rabid Republican, the other is a rabid Democrat. Each has appeared before the U. S. Supreme Court on many occasions, and appeared on opposing sides in Gore vs Bush. Both are highly respected and nationally known members of the legal profession. And citing the overriding importance of the equal protection clause, _they_ file suit against the State of California.

If there's a plot, and there may be, it's between them and one or more of the justices on the California Supreme Court. That court could realistically only rule as it did. The California Constitution give the people of that state the ability to amend the Constitution pretty much at a whim. The court can't overturn than aspect of the state Constitution, it can only enforce it. And the judges can hope privately, if they like, for Federal intervention to straighten the mess out. One or more of them even could have, in a private conversation, suggested such a thing. IMHO that's where the plot is, if there is one.

So, we probably have about five years before the Supremes take this up, if they do. It'll have to go through District Court, then be appealed (no matter the outcome) to the Circuit Court of Appeals, and then go on to the marble palace in D.C.

And from the Rachel Maddow Show:


Counterlight said...

I have mixed feelings about this. I see no reason why both a federal court and election strategy should not be pursued together. I think ultimately the stake through the heart of Prop H8, and all other laws like it, will be legislation. In Civil Rights, Brown v. Topeka Board of Ed broke the almost century old logjam on equal rights. But, it was the Civil Rights and Voting Rights acts that ultimately ended legal segregation once and for all.
LGBT marriage and civil rights will be much more secure, in my opinion, when they come through state legislatures. The federal challenge comes in when, as in the case of race and gender, there are drastic variations from state to state and region to region.

Leonardo Ricardo said...

there are drastic variations from state to state and region to region.¨ Counterlight

There are, there will be, this is a clear civil rights issue that must be addressed as such...more than once if necessary like a pile driver until everyone wakes up to their own true measure of fear and hate.

IT said...


What happens if the court rules against them? It's a damned conservative court. Can they ELIMINATE the possibility for gay marriage in the state? Damn right they can.

Why now? Why? I don't believe they are having a "come to Jesus" moment.

More at G M C

IT said...

Completely OT:

On Tuesday this blog had an all time high of 439 unique visitors and 625 unique page loads. And that doesn't, as far as I can tell, include those using readers or feeds.

Göran Koch-Swahne said...

I'm with Countelight. Both are needed and, above all, do not exclude each other.

Göran Koch-Swahne said...

"... a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution."

To me this is quite right - but then, I'm European...

Marshall said...

Well, I can understand the ambivalence. A majority of the current Court(and a new Justice Sotomayor won't change this significantly) has in fact leaned toward respecting legislatures as their tactic for avoiding "judicial activism."

At the same time, I regularly recall the teaching story that ends, "In that time the king may die, or I may die; or the ass may learn to talk." It will indeed take years for this to rise through the Federal Court system. In that time more states may change, and the makeup of the Court may well be different. There are certainly issues here that, like Loving vs. Virginia, would seem to come under the principle of "full faith and credit" among the states.

I guess I'm ambivalent, too, as to whether this suit is a good thing or not. What does seem clear, though, is that this suit is in itself more reason to pursue the state-by-state strategy. More legislatures and more initiatives would add import by the time this got to Washington.

Cany said...

Given the time it will take for this case to rise to the marbled pillars in DC, it makes legal sense to file the issue now.

While there are 30 states with doma-like statutes, that leaves 20 without. Three have legalized same gender marriage, and at least four more are headed that way.

If a regional issue is one of the points, then the NE will have a serious regional issue with the red southern states (NC excepted) as this is where the largest congregation of doma-statutes resides, unsurprisingly.

In the meantime, CA will come back likely in 2010 with another pro-marriage equality initiative and we just MUST get that 1 vote over 50%.

I think, given politics and timing, this is a right strategy.