A (Federal) Case for Marriage

As an all-star legal team mounts an ambitious federal challenge to California's Proposition 8, the future of national marriage equality weighs heavily on its shoulders.

BY Andrew Gumbel

July 06 2009 12:00 AM ET

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Supporters of Olson and Boies, for their part, say that a federal suit was inevitable. It's therefore much better to file one with top-drawer lawyers and a rock-solid argument than a lesser one with a much higher risk of failure. In fact, the Obama administration in June moved to dismiss an earlier federal case filed in California by an Orange County gay couple who were married before Prop. 8 went into effect. Olson's clients were denied the right to marry, and thus have a separate legal argument.

"There is no way that the LGBT legal and political establishment could prevent somebody eventually from filing a lawsuit that would wend its way to the Supreme Court," says Courage Campaign founder Rick Jacobs, who supports the suit brought by Olson and Boies.

Prop. 8 defenders are furiously downplaying the impact of the Olson-Boies suit. "We've seen challenges to California's marriage laws before. This is just another one," says Jim Campbell, an attorney with the conservative legal group Alliance Defense Fund. The ADF has already filed a motion to argue the pro-Prop. 8 side in this case. Gov. Arnold Schwarzenegger has declined to defend the ballot measure in federal court.

At press time, Judge Vaughn Walker of the Northern District of California was scheduled on July 2 to hear arguments for and against issuing a temporary injunction against Prop. 8. That would be only the first step in a battle that could last at least two years as it moves from district court to the ninth circuit court of appeals to the Supreme Court.

If the Supreme Court takes the case, it will likely end in a 5-4 decision, with Justice Anthony Kennedy issuing the deciding vote, Chemerinsky says. This assumes that the broad political makeup of the court remains the same in the coming years -- the most likely, but not the only possible, scenario.

Kennedy is an interesting justice to hold this particular issue in his hands. The Olson-Boies team takes heart from the fact that he wrote the majority opinion in both the Lawrence and Romer cases. He also has spoken out about the need for judicial thinking on social issues to evolve with the times.

Griffin, meanwhile, asserts that the team he has created is ready for any opposing legal arguments before them. "This is a human rights and a civil rights issue," Griffin says. "It matters to everyone, gay or straight. In a certain sense it is nonpartisan -- discrimination and bigotry know no partisan lines."

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