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Prop. 8 Challenge Filed in Federal Court

In a bold move, two attorneys who argued opposing sides of the 2000 Bush v. Gore lawsuit before the U.S. Supreme Court have filed a challenge to Prop. 8 in federal court.


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.

Olson said he was contacted several months ago by representatives of an association called the American Foundation for Equal Rights about his willingness to represent the two couples named in the suit.

"For a long time I've personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals," Olson said in an interview with The Advocate. "The individuals that we represent and will be representing in this case feel they're being denied their rights. And they're entitled to have a court vindicate those rights."

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court "make it clear that individuals are entitled to be treated equally under the Constitution. I'm reasonably confident that this is the right time for these [injustices] to be vindicated."

Olson, Boies, and other attorneys working on the suit are being compensated by the American Foundation for Equal Rights, Olson said his law firm and others also are contributing resources pro bono. As of press time, no website could be found for the newly formed organization. Olson and his representatives declined to specify who was funding the campaign.

The plaintiffs in the suit are Kristin Perry and Sandra Stier of Berkeley, Calif., and Paul Katami and Jeffrey Zarrillo of Burbank, Calif. Perry is executive director of First 5 California, a state health and education agency.

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Reader Comments
  • Name: James
    Date posted: 6/6/2009 6:04:00 PM
    Hometown: Hanford, CA

    Comment:

    Why this effort will fail: Baker v Nelson

  • Name: sylvia
    Date posted: 6/6/2009 1:53:00 PM
    Hometown: santa rosa

    Comment:

    equalrightsfoundation.org Check it out

  • Name: Sylvia
    Date posted: 6/6/2009 12:53:00 PM
    Hometown: Santa Rosa

    Comment:

    Do you really think that any lawyer would willfully go before the US supreme Court and lose!! They all have too big an EGO to do that. I am not suggesting that I believe Mr Olsen is noble or has had a liberal change of heart. I am saying that I don't think he would do anything that would not serve him and his career--and losing a huge federal case would certainly not serve HIM. I am personally very excited about this case and agree with one of the previous posters that it is HIGH TIME was stopped with the idea that we should have to win hearts and minds re: our civil rights. This issue --as Mr Olsen said, should never have been put to the popular vote in the first place! NO minority has ever won their rights through the vote of the majority! That is why we have the constitution to protect against the majority imposing thier will on the minority.

  • Name: HV Clair
    Date posted: 5/31/2009 11:40:00 AM
    Hometown: Charlotte, NC

    Comment:

    The devoutly Right Wing Attorney, Ted Olsen must have either fooled or paid off these gay "clients" by offering to represent them by pushing the question of their right to marry directly to the Supreme Court NOW. Some have foolishly suggested the evil Olsen must have had a change of heart after all the slime he has pitched previously. He has magically changed and now is trying to "help" a gay couple. LET'S BE CLEAR: Olsen doing this purposefully with ill intent! If they push the California issue right now - in its weakened state - to the currently conservative Supreme Court, it will almost certainly LOSE, and then the decision will get nationally codified for a long long time to come. And it could take decades, to reverse. We need to alert Olsen's hoodwinked clients who are PAWNS, and tell them to back out NOW. One can NEVER DO BUSINESS WITH THE DEVIL.

  • Name: Wanda Baker
    Date posted: 5/30/2009 10:16:00 AM
    Hometown: Cambria

    Comment:

    I think we have a good chance of winning, especially being represented by these 2 men. They know the Supreme Court better than any of us and they know Constitutional Law. If I were to pick 2 attorneys to represent the LGBT community, they would top the list. I do not think they would take a case that they thought they would lose. We can still work state-by-state. Most important that all of us come out so that our friends and neighbors know who we are. I'm in California and we are 1 of the 18,000 that got to say "I DO".

  • Name: Ronald Cisneros
    Date posted: 5/29/2009 2:47:00 PM
    Hometown: Tisbury, MA

    Comment:

    Finally, the courage to fight this in Federal Court. I have believed that this is the only way to go and have been very impatient with the large GLBT organizations unwilling to accept the fact that the time is now.

  • Name: lenny aka lynette
    Date posted: 5/29/2009 1:01:00 PM
    Hometown: lucerne

    Comment:

    Bless you both...What a team!!! Our constitutional rights are derived from the people themselves and protected primarily by the enumerated amendments to the Constitution. Provisions become binding upon states through selective incorporation into the due process clause of the 14th amendment.....which brings me to my lifetime ongoing quest as a lesbian, demanding my civil rights, full and enclusive with due process, equal protection and freedom from discrimination....regardless what state I choose to live in!!!

  • Name: Robert White
    Date posted: 5/29/2009 1:25:00 AM
    Hometown: Renton, WA

    Comment:

    Actually I have always thought that a male individual should sue for the right to marry a man (instead of a couple suing together) under gender discrimination. After all, if you lift the complainant out of the circumstance and toggle his gender, changing no other factor, the legality changes. That is the purest and simplest possible test for discrimination based on sex meaning gender, as previously clarified by the SCOTUS. There is no simpler test for the clause.

  • Name: corrective_unconscious
    Date posted: 5/28/2009 11:17:00 PM
    Hometown: Philly, PA

    Comment:

    A legal organization appears out of nowhere and announces its very first case will be to take the issue of marriage equality to the Supreme Court. Something's not right here, and I'm unclear how Boies got mixed up in this rush to a conservative Supreme Court which will not decide in a progressive manner.

  • Name: blaaarg
    Date posted: 5/28/2009 11:03:00 PM
    Hometown: long beach

    Comment:

    Where do I contribute to these guys? Is HRC involved?

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