Posted by Dale Carpenter:
More on Ted Olson's federal lawsuit for gay marriage:
http://volokh.com/archives/archive_2009_05_24-2009_05_30.shtml#1243451221
To be honest, when I first heard that former Bush Solicitor General
Ted Olson, a rock-solid member of the conservative legal movement, had
filed a federal lawsuit to invalidate Prop 8 I thought it was an
Internet hoax. So I held off posting about it for awhile last night.
It was a surprise because I had no idea Olson supported equality for
gays and lesbians, much less full marriage rights. It was doubly a
surprise because, even if he supported gay marriage, Olson struck me
as the kind of conservative who would reject what many conservatives
would regard as judicial activism.
But, behold, [1]here is Ted Olson in a press release today explaining
the merits of the case just filed, in which he and David Boies have
requested a preliminary injunction:
�Yesterday, the California Supreme Court said that the California
Constitution compels the State to discriminate against gay men and
lesbians who have the temerity to wish to express their love and
commitment to one another by getting married,� Olson said. �These
are our neighbors, coworkers, teachers, friends, and family, and,
courtesy of Prop 8, California now prohibits them from exercising
this basic, fundamental right of humanity. Whatever discrimination
California law now might permit, I can assure you, the United
States Constitution does not.�
�Mr. Olson and I are from different ends of the political spectrum,
but we are fighting this case together because Proposition 8
clearly and fundamentally violates the freedoms guaranteed to all
of us by the Constitution,� Boies said. �Every American has a right
to full equality under the law. Same sex couples are entitled to
the same marriage rights as straight couples. Any alternative is
separate and unequal and relegates gays and lesbians to a second
class status.� . . .
Today�s lawsuit argues that the California�s Constitution -- as
amended by Proposition 8 -- violates the Fourteenth Amendment of
the United States Constitution, a provision with which all state
laws must comply. Relegating gays and lesbians to �separate but
unequal� domestic partnerships violates the U.S. Constitution, the
suit states. California�s domestic partnership law is not an
adequate substitute for access to the State�s institution of civil
marriage, the suit states, because domestic partnerships do not
provide all of the legal and government benefits and protections
that marriage does.
�More than 30 years ago, the United States Supreme Court recognized
that marriage is one of the basic rights of man,� the suit states,
referring to the Court�s decision in Loving v. Virginia, which
struck down bans on interracial marriage.
According to the suit, Proposition 8:
· Violates the Due Process Clause by impinging on fundamental
liberties.
· Violates the Equal Protection Clause of the Fourteenth
Amendment.
· Singles out gays and lesbians for a disfavored legal status,
thereby creating a category of �second-class citizens.�
· Discriminates on the basis of gender.
· Discriminates on the basis of sexual orientation.
[Plaintiffs] Kris Perry and Sandy Stier have been together for 9
years and are the parents of four boys. . . . Paul Katami and Jeff
Zarrillo have been together for 8 years. . . . Having wanted to
marry each other for more than two years, they considered options
including traveling to other states for a �civil union,� but felt
any alternative fell short of marriage.
You can view the press conference and see the Complaint by following
the link above.
References
1. http://www.equalrightsfoundation.org/images/AFER_Press_Release_5-27.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
