A federal lawsuit has been filed challenging Proposition 8 (via Instapundit and Volokh Conspiracy). The lawsuit was filed last Friday, May 22, 2009, by noted Republican attorney Ted Olson, and noted Democratic attorney David Boies. Olson and Boies were on opposite sides of the landmark Bush v. Gore lawsuit which resolved the Florida electoral dispute in the 2000 election.

The lawsuit, which effectively would nullify today’s California Supreme Court decision upholding Proposition 8, seeks an injunction against implementation of Proposition 8 under federal law, including alleged violations of the Due Process Clause of the 5th Amendment to the U.S. Constitution and the Equal Protection Clause of the 14th Amendment.

Some may be surprised at Olson’s involvement, but he gave this explanation:

“I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions,” Olson told me Tuesday night. “I thought their cause was just.”

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also
personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”

In what may have implications for the upcoming hearings for Sonia Sotomayor, Olson predicts that case will end up at the U.S. Supreme Court:

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it’s a question that will be decided in Washington, by the Supreme Court. “This is an issue that will get to the Supreme Court, and I think it could well be this case,” he said.

This highlights that gay marriage may be a key issue in Sotomayor’s nomination process, as I predicted. [Added: If successful, the lawsuit would create a federal constitutional right to gay marriage, which would supercede not only California Prop. 8, but laws in other states banning gay marriage.]

The federal lawsuit was filed prior to the California Supreme Court decision, presumably because the outcome of the state lawsuit upholding Prop. 8 was predicted by just about everyone. What remains to be seen is how quickly the suit is pushed. The lawsuit does not seek temporary (emergency) injunctive relief, so it will take time to work its way through the court. On the other hand, the suit does seek preliminary and permanent injunctive relief, meaning that the Court will have to set a schedule to determine what briefing or other court actions are necessary and how quickly.

Perry v Schwarzenegger – Complaint

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