I received the following in an email from Family Leader. Even though the California Supreme Court upheld the Proposition 8 win, we knew it would be short-lived as they left the door open for inevitable challenges. Now comes Ted Olsen and David Boies, no longer opponents, working together to get the proposition overturned.We must do everything we can to help fight this challenge.
California’s New Serious Threat to Marriage
The battle for the definition of marriage continues to be hot even after the California Supreme Court affirmed the Prop 8 victory. In a new effort, two attorneys, both known for their star power, have filed a federal challenge to the same-sex marriage ban in California, claiming that it violates the equal protection clause of the U.S. Constitution.
Ted Olson, a conservative and David Boies, a liberal, who squared off before the Supreme Court over the Bush v. Gore election make an odd couple legal team, but the Hollywood money behind them from figures such as director Rob Reiner and “MLK” producer Bruce Cohen think this challenge has merit, and they hope it will make it all the way the Supreme Court whose decision could then have the affect of overriding all the state marriage amendments.
The suit, known as Perry v. Schwarzenegger, alleges that Prop 8 creates a class of “second class citizens” and thereby violates the Constitution.
Gov. Arnold Schwarzenegger, in a dereliction of duty to defend the people’s vote, has declined to defend the constitutionality of Proposition 8, telling a San Francisco judge that the legality of the marriage measure is for the courts to decide. (Yes, of course, but without the state’s defense?).
The governor’s decision to remain neutral in a federal challenge to Proposition 8 means no statewide official will be defending the measure in federal court.
The stakes are high-and in pursuing this case, the Hollywood bigwigs are taking on a court case that long-time same-sex marriage advocates have sought to avoid. To these advocates, the federal judiciary is seen as conservative and they have argued that a gradual approach to change public opinion and win in states would be a crucial preparation for a challenge in the Supreme Court, which often looks to public opinion in morality-linked cases.
They point to Justice Anthony Kennedy as being the swing vote on the nine-member court and note that he has already ruled in favor of gays in two important cases.
A loss for them before the Supreme Court, however, could mean a number of years before the Court is ready to revisit same-sex marriage again and could influence the outcome for gays in other legal battles.
It could take at least two years for the case to make its way to the Supreme Court,that also could ultimately refuse to hear the case.
Andy Pugno, speaking for California’s Protect Marriage coalition, of which we are a part, has said, “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.”
At Family Leader, we see the most immediate threat being the federal court passing an injunction against Prop 8, allowing same-sex couples to continue to marry in California until the case is resolved. This would be a media opportunity to continue to celebrate same-sex marriage and influence public opinion.
What is certain is that two such high profile attorneys representing same-sex marriage advocates will attract media attention and will give them ample opportunity to persuade the public to their viewpoint.
The first federal hearing is July 2.