Metropolitan News-Enterprise


Thursday, May 28, 2009


Page 1


Marriage Battle Moves to U.S. Court as Injunction Hearing Set




A federal district judge will hear arguments July 2 on a new suit claiming that Proposition 8 violates the U.S. Constitution’s equal protection and due process clauses, an attorney for the plaintiffs said yesterday.

Theodore Boutros of Gibson, Dunn & Crutcher, one of several attorneys representing two couples who brought suit last Friday challenging the state’s ban on same-sex marriage, told the MetNews that Chief U.S. District Judge Vaughn Walker of the Northern District of California had set a hearing on the plaintiffs’ request for a preliminary injunction.

Earlier yesterday, two other attorneys for the plaintiffs, former Solicitor General Theodore B. Olson and David Boies, held a press conference at the Biltmore Hotel in downtown Los Angeles to explain the suit. The pair said they had been in discussions for some time about bringing the challenge, in anticipation that the state Supreme Court would uphold the initiative, as it did on Tuesday.

Federal Questions Unanswered

They noted that the California court addressed only the issue of whether Proposition 8 validly amended the state Constitution, and did not discuss questions of federal constitutional law.

The two attorneys, and some of the reporters present at the news conference, noted the unusual nature of their collaboration. The two argued on opposite sides of the U.S. Supreme Court’s Bush v. Gore case, with Olson representing then-presidential nominee George W. Bush in his successful bid to block a statewide recount of the 2000 presidential vote in Florida, and Boies the lead counsel for Democratic candidate Al Gore.

Boies said he joined the litigation at Olson’s invitation, and that the two had been friends for years. Olson said the suit was “not about liberal or conservative, Democrat or Republican,” but about whether same sex couples would get “the freedoms to which they are entitled under the Constitution.”

In response to a reporter’s question about whether there was a conflict between his advocacy of marriage equality and his membership in the Federalist Society, a conservative legal group, Olson said that the group was not “anti-gay,” and “does not have any creed at all.”

The society “believes in limited government,” and while other members may define that differently, Olson said, “I feel very, very strongly that this is the right position…for America.”

He compared the suit to Loving v. Virginia, in which the Supreme Court said states could not ban interracial marriage.

‘Basic Liberties’

The complaint by Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank alleges that Proposition 8 denies gays and lesbians “the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution.”

Specifically, the plaintiffs contend that the ban violates substantive due process by impinging on fundamental liberties; treats same-sex and male-female couples unequally;  imposes on gays and lesbians a form of second-class citizenship, and discriminates based on gender and sexual orientation.

The action does not directly challenge other impediments to full recognition of same-sex marriages such as the federal Defense of Marriage Act, which precludes federal recognition of same-sex marriages—even where lawful in the states or foreign countries in which they occur—and permits individual states to refuse to recognize such marriages.

Boutros, however, noted that a constitutional challenge to DOMA is pending in federal court in Massachusetts, where same-sex marriage is legal, and said that a broad ruling in his clients’ suit could impact the future of DOMA and of other states’ marriage bans.

New England States

Same-sex marriage is also legal in Connecticut, Vermont and Maine. Legislation permitting it in New Hampshire was recently vetoed by that state’s governor, who said he would sign a bill if certain changes were made.

Andrew Pugno, an attorney for Proposition 8 supporters, issued the following statement in response to Boies’ and Olson’s press conference:

“Just one day after the California Supreme Court upheld Prop 8, the will of the voters is under attack once again.  This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding.  But we will take it seriously and take action to provide a vigorous defense of Prop 8, just as we did in the California courts.” 

Some opponents of Proposition 8 said they were unhappy about the suit.

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,” Shannon Minter, legal director of the National Center for Lesbian Rights, said in the release.


Copyright 2009, Metropolitan News Company