Spurned by the California Supreme Court, gay couples wanting to marry appealed to the federal courts Wednesday to strike down Proposition 8 as unconstitutional state interference in a citizen’s fundamental right to lawful wedlock.
The lawsuit brought by two high-powered lawyers and unlikely allies — former Bush administration Solicitor General Theodore Olson and David Boies, who represented opposing sides in the 2000 Bush vs. Gore election challenge — was met with some skepticism about the conservative Olson’s motives for getting involved in a rights battle usually spearheaded by liberals.
The challenge brought in U.S. District Court in San Francisco also worried gay-rights advocates, who have avoided taking the issue to federal court because of the predominance of conservative judges on the federal bench.
A coalition of nine gay-rights advocacy groups called the suit “premature.”
“Test cases can blow up in your face,” said Matt Coles, head of the ACLU program on gay-rights issues. “It was a test case that enshrined separate-but-equal in the U.S. Constitution for 58 years.”
Olson and Boies argued that inaction for fear of a setback in the federal courts was unacceptable at a time when gay couples, such as the clients who silently flanked them at a news conference, are being denied the fundamental right of marriage.
Olson, allied with conservative groups such as the Federalist Society, was challenged as to his reasons for taking up the cause of same-sex-marriage rights.
“I don’t think I’ve ever been part of any organization that was anti-gay or felt that a group was not entitled to equal rights,” he said.
