Bush v. Gore lawyers take on gay marriage ban

LOS ANGELES Wed May 27, 2009 4:42pm EDT

Two bride figurines are seen during a rally in response to the California Supreme Court's ruling regarding Proposition 8 in Hollywood, California May 26, 2009. REUTERS/Mario Anzuoni

Two bride figurines are seen during a rally in response to the California Supreme Court's ruling regarding Proposition 8 in Hollywood, California May 26, 2009.

Credit: Reuters/Mario Anzuoni

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LOS ANGELES (Reuters) - Two lawyers who squared off in the legal battle over the 2000 U.S. presidential election teamed up on Wednesday to challenge California's gay marriage ban in a move that if successful would allow same-sex couples to wed anywhere in the United States.

The lawsuit, filed on behalf of two same-sex California couples barred from marrying under the voter-approved measure, Proposition 8, puts them at odds with gay rights advocates who see a federal court challenge as risky.

Gay rights advocates, fearing a loss in the socially conservative-leaning U.S. Supreme Court, have avoided going to federal court after losses at state ballot boxes and in state courtrooms.

The California's supreme court on Tuesday upheld Prop 8, which defines marriage exclusively as between a man and a woman, as a valid amendment to the state's constitution.

The same court last May struck down a state law prohibiting same-sex marriage, opening the way for an estimated 18,000 gay and lesbian couples to wed before Prop 8 was approved by voters in November, reimposing the gay marriage ban.

Ted Olson and David Boies, who opposed each other in the Bush v. Gore Supreme Court case, said that gays and lesbians who cannot marry were made into second-class citizens by California's voter-approved ban, known as Proposition 8, in violation of the U.S. Constitution.

"This case is about equal rights guaranteed every American under the United States Constitution," former U.S. Solicitor General Olson told a news conference in Los Angeles.

"For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy."

RISKY BUSINESS

If the case prevails, it would establish the right of gay couples to marry as the law of the land. The vast majority of U.S. states specifically prohibit same-sex marriage, despite recent victories by gay advocates in Iowa and some Northeastern states.

The lawsuit itself was brought last Friday in advance of the state's high court ruling. On Wednesday, the lawyers filed a request for a federal court order to lift the ban, and allow same-sex marriages to continue, until the case is resolved.

Andrew Pugno, one of the lawyers who successfully defended Prop 8 in state court, said the will of the voters was under attack, and that he would defend it again. "This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding," he said.

Olson was joined by Boies, who opposed him in the U.S. Supreme Court case that decided the outcome of the disputed 2000 presidential election between then-Texas Governor George W. Bush and then-Vice President Al Gore. The high court ultimately ruled in favor of Bush, whom Olson represented.

Although political conservatives and liberals have split sharply over the issue of gay marriage, with conservatives tending to oppose same-sex marriage and liberals more likely to support it, the lawyers cast the debate in nonpartisan terms.

"We come from different parts of the political spectrum. But I think Republicans and Democrats, conservatives and liberals, all recognize the importance of equal rights guaranteed by the Constitution," Boies said. "This is a civil rights issue. A big one."

But gay rights activists are wary.

"A federal lawsuit at this time is terribly risky," said Jenny Pizer, one of the lawyers for Lambda Legal Marriage Project who argued against Prop 8 before the California court.

Her organization, the American Civil Liberties Union and others said in a statement, "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

Olson and Boies disagreed, arguing that the federal courts were ready to affirm marriage rights on the basis of sexual orientation.

"We think we know what we're doing," Olson said. "We've studied the Constitution. We've studied the United States Supreme Court. There are a number of very, very important decisions by the United States Supreme Court on which this case is and will be predicated."

One he cited was a 1967 Supreme Court decision in that struck down a Virginia statute prohibiting couples of different races from being married.

By contrast, Boies said, the California high court's ruling was very narrow, holding only that Prop 8 was a valid amendment to the state's constitution under state law. The question of whether Prop 8 was constitutional under federal law was left undecided, he said.

(Additional reporting by Peter Henderson from San Francisco; Editing by Sandra Maler)

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