Ted Olson's same-sex marriage suit gets more big names

LGBT rights groups are now supporting a suit being litigated by the lawyers from Bush v. Gore


Vincent Rossmeier
June 30, 2009 1:30AM (UTC)

Back in May, a lawsuit that seemed to provide a historic opportunity to overturn same-sex marriage bans throughout the country was filed. The suit, which specifically challenged California's Proposition 8, was noteworthy because the two lead attorneys, David Boies and Ted Olson, on it were two of the U.S.' biggest legal names, and because they'd previously been rivals, litigating opposite sides of Bush v. Gore.

You might think the major LGBT rights would jump at an opportunity like the one provided by the Boies-Olson suit; the movement hasn't had this kind of legal firepower behind it before. Instead, they opposed the effort. Boies and Olson want to take the fight to the Supreme Court and ask the justices to declare all bans on same-sex marriage unconstitutional -- the holdout groups were concerned that the court, with its center-right tilt, would rule the other way and deal the movement a painful blow.

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Last week, though, most of the big name gay rights groups started to get behind the suit. In a  brief filed Thursday night, the ACLU, the National Center for Lesbian Rights and Lambda Legal argued that Proposition 8 violates federal equal protection and due process guarantees. The brief's language shows pretty clearly that though the case is, for now, specifically about Prop 8, it's aimed at a broader ruling:

Proposition 8 denies same-sex couples the right to marry in a unique historical context in which the denial can only be deemed a declaration of inequality. First, Proposition 8 singled out gay and lesbian couples for discriminatory treatment by stripping them of the right to marry in direct response to the California Supreme Court’s recognition that all individuals and couples, regardless of sexual orientation, are entitled to exercise the fundamental right to marry. Second, while Proposition 8 stripped same-sex couples of the designation or status of marriage, it otherwise left the legal rights of same-sex state-registered couples both intact and identical to the legal rights of heterosexual married couples. The intent and effect of the measure is therefore to differentiate between same-sex couples and different-sex couples solely on the basis of declared unequal status—an illegitimate purpose for a state law, whatever standard of constitutional scrutiny is applied under the Equal Protection Clause.


Vincent Rossmeier

Vincent Rossmeier is an editorial assistant at Salon.

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