Rival lawyers team up to appeal same-sex marriage ban in federal court

Spurned by the California Supreme Court, same-sex couples wanting to marry appealed to federal courts Wednesday to strike down Proposition 8 as unconstitutional state interference in a citizen’s fundamental right to lawful wedlock.

The lawsuit brought by two high-powered lawyers and unlikely allies, former Bush administration Solicitor General Theodore Olson and his Bush vs. Gore opponent David Boies, was met with some skepticism as to the conservative Olson’s motives for getting involved in a rights battle usually spearheaded by liberals.

The challenge brought in U.S. District Court in San Francisco also worried gay-rights advocates, who have avoided taking the issue to federal court because of the predominance of conservative judges on the federal bench and the risk of adverse rulings.

A coalition of nine gay-rights advocacy groups called the suit “premature” and warned that without more groundwork, the U.S. Supreme Court doesn’t seem likely to rule that same-sex couples are entitled to marry. The groups, including the American Civil Liberties Union, Lambda Legal and Gay & Lesbian Advocates & Defenders, urged those disappointed by Tuesday’s high-court ruling upholding Proposition 8’s ban on same-sex marriage to pursue their rights through another voter initiative or the Legislature.


“Test cases can blow up in your face,” said Matt Coles, head of the ACLU program on gay-rights issues. “It was a test case that enshrined separate-but-equal in the U.S. Constitution for 58 years. Test cases don’t always work and you have to make a thoughtful judgment about whether to raise them or not.”

An untimely challenge to the constitutionality of Georgia’s antisodomy law in Bowers vs. Hardwick in 1986 led to widespread rejection of gay and lesbian rights claims across the judiciary for 17 years, Coles recalled, before the U.S. Supreme Court reversed itself in 2003’s Lawrence vs. Texas.

Olson and Boies, acting as co-counsel for the first time in their long, distinguished careers, argued that inaction for fear of a setback in the federal courts was unacceptable at a time when same-sex couples, some of whom silently flanked the attorneys at a news conference Wednesday, are being denied the fundamental right of marriage.

“There will be many people who will think this is not the time to go to federal court,” Olson conceded when asked why he was ignoring the advice of the civil rights groups. Noting his record arguing before the U.S. Supreme Court -- 54 cases -- and Boies’ successful career as a litigator, Olson asserted: “We think we know what we are doing.”


“Reasonable minds can differ, but when you have people being denied civil rights today, I think it is impossible as lawyers and as an American to say, ‘No, you have to wait. Now is not the right time,’ ” Boies added.

Olson, allied with conservative groups such as the Federalist Society, was asked why he decided to take up the cause of same-sex marriage rights.

“I don’t think I’ve ever been part of any organization that was antigay or felt that a group was not entitled to equal rights,” replied Olson, who has spent most of his career with Los Angeles-based Gibson, Dunn & Crutcher LLP. “I hope that people don’t suspect my motives.”

Boies vouched for the sincerity of his erstwhile opponent, saying Olson was “committed in his heart and soul to equality.”


The lawyers, waging the inaugural case of the newly created American Foundation for Equal Rights, pointed to several Supreme Court rulings as evidence that the justices can be counted on to make the right decision when important rights are at stake, including the 1967 ruling in Loving vs. Virginia that struck down that state’s ban on interracial marriage.

California’s Supreme Court ruling upholding Proposition 8 creates a community of second-class citizens, Olson said of the thousands of gay and lesbian couples prohibited from marrying because of the voter initiative’s redefinition of marriage as only between one man and one woman.

The suit filed by Olson and Boies on behalf of a lesbian couple from Berkeley, Kristin Perry and Sandra Stier, and gay partners Paul Katami and Jeffrey Zarrillo of Burbank, was assigned to U.S. District Judge Vaughn Walker in San Francisco.

The Northern District of California is the only one of the four federal district benches in California with a majority of judges appointed by Democratic presidents -- eight of the 12.


Walker was named to the bench by Republican President George H.W. Bush but has shown himself willing to buck the political tide of the appointing party, as in his refusal to dismiss a case alleging illegal wiretapping by the administration of former President George W. Bush.