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Lawyers urge broad ruling by high court in favor of gay marriage

February 21, 2013|By David G. Savage
  • A same-sex marriage proponent holds a gay marriage pride flag in front of the Supreme Court.
A same-sex marriage proponent holds a gay marriage pride flag in front of… (Chip Somodevilla / Getty…)

WASHINGTON -- The lawyers challenging California’s Proposition 8 are urging the U.S. Supreme Court to rule broadly that gays and lesbians across the nation deserve an equal right to marry.

“We believe this is a matter of fundamental rights,” said Washington attorney Ted Olson shortly after filing his legal brief in the high court.

Rather than focus narrowly on the special situation in California, Olson and co-counsel David Boies said they decided to “paint the broad picture” for the Supreme Court on how marriage for gays fits with the nation’s historic commitment to liberty and equality.

“Because of their sexual orientation -- a characteristic with which they are born and which they cannot change -- plaintiffs and hundreds of thousands of gay men and lesbians in California and across the nation are being excluded from one of life’s most precious relationships. They may not marry the person they love, the person with whom they wish to partner in building a family and with whom they wish to share their future,” they wrote in a closing passage. 

Forbidding them to marry “denies gay men and lesbians their identity and their dignity; it labels their families as second-rate. That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the 14th Amendment and the dreams of all Americans.”

The Olson-Boies brief ratchets up the pressure on the Obama administration to take a stand in behalf of gay marriage, and it puts more pressure on the high court to rule broadly on whether the Constitution protects a fundamental right to marry for all.

Last year, the 9th Circuit Court of Appeals ruled Proposition 8 is unconstitutional, but it did so for a special reason unique to California. The voters adopted the state constitutional measure limiting marriage to a man and a woman in 2008 so as to overturn a state Supreme Court ruling permitting gay marriage, and the 9th Circuit said it is unconstitutional to take away such a fundamental right.

If the U.S. Supreme Court were to follow this approach, it would void Proposition 8 and permit gay marriage in California, but its ruling would not affect other states.

Currently, nine states authorize marriage for same-sex couples. Moreover, the Defense of Marriage Act forbids federal agencies from recognizing same-sex marriages, but that too faces a constitutional challenge in the Supreme Court.

The Obama administration is urging the court to strike down part of DOMA and to rule that legally married gay couples deserve equal rights under federal law. But the administration has not taken a stand on the broader legal question of whether gays and lesbians have a right to marry across the nation.

Olson said he would welcome support from the administration. “We would very much like the United States to file a brief as a friend of the court,” said Olson, who served as U.S. solicitor general under President George W. Bush.

The deadline to file a so-called amicus brief in the California case is Feb. 28.


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