Spurned by the California Supreme Court, same-sex couples wanting to marry appealed to federal courts Wednesday to strike down Proposition 8 as unconstitutional state interference in a citizen's fundamental right to lawful wedlock.
The lawsuit brought by two high-powered lawyers and unlikely allies, former Bush administration Solicitor General Theodore Olson and his Bush vs. Gore opponent David Boies, was met with some skepticism as to the conservative Olson's motives for getting involved in a rights battle usually spearheaded by liberals.
The challenge brought in U.S. District Court in San Francisco also worried gay-rights advocates, who have avoided taking the issue to federal court because of the predominance of conservative judges on the federal bench and the risk of adverse rulings.
A coalition of nine gay-rights advocacy groups called the suit "premature" and warned that without more groundwork, the U.S. Supreme Court doesn't seem likely to rule that same-sex couples are entitled to marry. The groups, including the American Civil Liberties Union, Lambda Legal and Gay & Lesbian Advocates & Defenders, urged those disappointed by Tuesday's high-court ruling upholding Proposition 8's ban on same-sex marriage to pursue their rights through another voter initiative or the Legislature.
"Test cases can blow up in your face," said Matt Coles, head of the ACLU program on gay-rights issues. "It was a test case that enshrined separate-but-equal in the U.S. Constitution for 58 years. Test cases don't always work and you have to make a thoughtful judgment about whether to raise them or not."
An untimely challenge to the constitutionality of Georgia's antisodomy law in Bowers vs. Hardwick in 1986 led to widespread rejection of gay and lesbian rights claims across the judiciary for 17 years, Coles recalled, before the U.S. Supreme Court reversed itself in 2003's Lawrence vs. Texas.
Olson and Boies, acting as co-counsel for the first time in their long, distinguished careers, argued that inaction for fear of a setback in the federal courts was unacceptable at a time when same-sex couples, some of whom silently flanked the attorneys at a news conference Wednesday, are being denied the fundamental right of marriage.
"There will be many people who will think this is not the time to go to federal court," Olson conceded when asked why he was ignoring the advice of the civil rights groups. Noting his record arguing before the U.S. Supreme Court -- 54 cases -- and Boies' successful career as a litigator, Olson asserted: "We think we know what we are doing."
