Unhappy with Democracy, Bush v. Gore Rivals Join to Ask Fed Court to Overturn Proposition 8

Thu May 28, 2009 - 12:15 pm EST

By Peter J. Smith

SAN FRANCISCO, May 28, 2009 ( - Dissatisfied with the recent ruling from the California Supreme Court on Proposition 8, the former rivals in the Bush v. Gore decision have joined together this time to urge a federal appeals court to nullify the Californian citizens' vote to ban same-sex "marriage."

Ted Olson and David Boies, who represented George Bush and Al Gore respectively in the landmark Supreme Court decision that put an end to the cycles of ballot recounts in Florida and effectively settled the 2000 presidential election, are asking a federal appeals court to forbid the state of California from enforcing Proposition 8.

Olson and Boies filed an injunction on behalf of two homosexual couples, Paul Katami and Jeffrey Zarrillo of Burbank, and Kristin Perry and Sandra Stier of Berkeley, who are both mothers to four children, arguing that they have a federal right to "marry" a person of the same sex.  

The lawsuit comes in the wake of the California Supreme Court ruling 6-1 to allow Proposition 8 to stand.  Although the justices had created same-sex "marriage" in the state, they appeared reluctant to overturn the will of the state's citizenry, who could remove them from office by recalling them, a threat to which federal judges are immune.

"This is a federal question," Olson told the Associated Press in a telephone interview on Tuesday. "This is about the rights of individuals to be treated equally and not be stigmatized."

Olson, a former solicitor general in the Bush administration who is also associated with the conservative Federalist Society, surprisingly said that he and Boies decided to take up the lawsuit together in order to become what he called a "symbol of the fact that this not a conservative or a liberal issue."  Olson informed the AP, "We want to send a signal that this is an important constitutional issue involving equal rights for all Americans."

The lawsuit argues that Proposition 8 makes homosexuals "second-class citizens" and violates equal protection and due process under the US Constitution by revoking the right of homosexuals to marry.

Among the precedents cited by Olson and Boies is the 1967 case of Loving v. Virginia, which struck down bans on interracial marriage on the basis of violating equal protection and due process under the 14th Amendment. 

However, the opinion by the Supreme Court in that case stated "marriage is one of the basic civil rights of man, fundamental to our very existence and survival." The high court went on further to add, "Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

 "You are not depriving anyone of equal rights to something which they are not entitled by definition," Dr. Edwin Vieira, a constitutional law expert for over 30 years told

"The question arises, and this has always been true, that the states are not bound necessarily to give all rights to all people. Equal protection depends on factual determinations of equality or disparate status," stated Vieira, who has argued cases several times before the US Supreme Court. "If people are not similarly situated, it is not a denial of equal protection to accord them more or less rights as a matter of state law."

"If you are looking at a situation in which the definition of the thing precludes homosexuals from participating any more than it precludes sheep from participating in it, then there is no equal protection question there at all," said Vieira. "They are factually different things. Then you have to argue at a higher level that certain kinds of relationships are entitled to the same kind of rights." 

He added, "The short answer would be no, because one set of relationships generates familial structures and the other doesn't in the normal course of events."

The case will be heard by U.S. District Chief Judge Vaughn Walker of the Northern California district in San Francisco.

The lawsuit is a first for Olson and Boies's newly created group, American Foundation for Equal Rights.  Any appeal of the case will likely go to the 9th Circuit Court of Appeals, a federal court known for its judicial activism. A further appeal will likely go to the US Supreme Court, which will either end up upholding Proposition 8, or possibly legalizing same-sex "marriage" throughout the United States and rejecting the expressed will of the people of California as indicated by the passed referendum question on the issue. 

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