Federal Lawsuit Against Prop. 8 Comes More Quickly Than Expected

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    (Photo: AP / Damian Dovarganes)
    Attorneys Theodore B. Olson, left, and David Boies, right, announce a federal court challenge to Proposition 8 during a news conference in Los Angeles on Wednesday, May 27, 2009. The suit calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights for same sex couples.
By Lillian Kwon, Christian Post Reporter
May 29, 2009|3:50 pm

In a bid to face off against the nation's top two litigators, Christian legal firm Alliance Defense Fund filed a motion on Thursday to intervene against another lawsuit challenging Proposition 8.

Just coming out of an earlier court challenge with a win, ADF attorneys have wasted no time as they continue to defend California's constitutional amendment defining marriage as between a man and a woman.

"We seek again to vigorously defend the definition of marriage that has existed since the founding of this state, that has been affirmed by the people, and that has been upheld by the courts," said Andrew Pugno, general counsel of ProtectMarriage.com and an ADF-allied attorney.

On Tuesday, California's Supreme Court ruled to uphold Proposition 8 – which was passed by 52 percent of voters last November. The justices said the amendment was neither an illegal constitutional revision by the people nor unconstitutional.

At the same time, the court kept intact the 18,000 same-sex marriages that took place before the November vote.

Top litigators Theodore B. Olson and David Boies – who represented the opposing sides of the Bush v. Gore case in 2000 – filed a lawsuit in federal court on behalf of one gay couple and one lesbian couple, arguing that Proposition 8 violates the U.S. Constitution's guarantees of equal protection and due process of the law.

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Responding to the plaintiffs' arguments, Family Research Council president Tony Perkins said, "Everyone has an equal right to marry in this country, but no one has an unlimited right to marry 'the person of their choice'" such as a child, a close blood relative or a person who is already married.

The lawsuit was filed last Friday, days before the ruling was issued, and is not an appeal of the state high court decision. Rather, it is a direct challenge to the amendment.

"This is a federal question," Olson told The Associated Press. "This is about the rights of individuals to be treated equally and not be stigmatized."

Some gay rights groups, however, believe taking the gay marriage issue to federal court would be premature at this time and risky.

The American Civil Liberties Union, Human Rights Campaign and the National Gay and Lesbian Task Force, among others, released a statement this week saying "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

The groups say they need to build "more public support" in individual states and head to the ballot box before taking the issue to federal courts.

"The history is pretty clear: the U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states," the groups state, adding that a loss in the federal court could set them back.

According to the latest national survey, the majority of Americans remain opposed to legalizing same-sex marriage. The Gallup Poll revealed this week that 57 percent of Americans say gay and lesbian marriages should not be legal.

The conservative group FRC was also surprised by the federal lawsuit.

"While FRC and our allies have been prepared to wage this war, none of us expected the battle to arrive on the national stage so quickly,” Perkins said.

The conservative leader believes even if this case, Perry v. Schwarzenegger, becomes the "Roe v. Wade of marriage," there still would be no resolution to the debate.

"As with abortion, the Supreme Court's involvement would only make the issue more explosive," he noted.

"As such, it's time for the far Left to stop asking judges to redefine our most fundamental social institution and leave the decision of marriage where it belongs – in the hands of the American people."

 

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