Legal Experts Concerned by Fed Prop. 8 Case

But referring to a 1967 Supreme Court decision that struck down state laws barring interracial marriage, Boies said the high court's record on civil rights cases over the past few decades "makes it crystal clear that marriage is a fundamental right guaranteed by the federal government.

"Reasonable minds can differ when a constitutional challenge should be made," Boies said. "But when people are being denied constitutional rights today, I think it is impossible as a lawyer and an American to say, 'No, you have to wait.'"

Olson and Boies argue that relegating California same-sex couples to domestic partnerships instead of full marriage rights is a violation of equal protection and due process clauses under Fourteenth Amendment of the U.S. Constitution.

In its ruling on the constitutionality of Prop. 8, Boies said, the California supreme court "went far to point out that this decision was about the California constitution. It did not suggest that those who want to seek rights at the federal level [have no basis]."

Olson's involvement in the case drew immediate scrutiny from reporters, who questioned his conservative Republican background and affiliation with organizations like the Federalist Society.

"I don't think I've ever been a part of any organization that's antigay or believes gays are not entitled to equal rights," Olson said in response. "The Federalist Society doesn't have any creed at all. It brings together people who want to debate important issues having to do with the law."