Bush, Gore attorneys pair up on same-sex marriage

Attorneys Ted Olson and David Boies, who argued against each other in the landmark 2000 case Bush v. Gore, have teamed up to bring another contentious issue to the Supreme Court.

The pair filed suit in federal court Wednesday on behalf of two gay couples who say California’s Proposition 8, a measure that bans marriage between homosexual couples, violates the U.S. Constitution.

{mosads}Earlier this week, the California Supreme Court upheld Proposition 8’s validity. But the court also upheld the rights of gay couples that had been married before the law went into effect, upholding some 18,000 marriages.

Now, the political odd couple will argue against Proposition 8 before the U.S. District Court in the Northern District of California. Their argument: Proposition 8 violates the federal Due Process Clause and the Equal Protection Clause; discriminates based on gender and sexual orientation; and makes gays and lesbians the equivalent of second-class citizens.

Olson, the former solicitor general who represented then-Gov. George W. Bush, and Boies, a leading Democratic lawyer famous for his work accusing Microsoft of antitrust violations and for arguing for then-Vice President Al Gore, were on opposite sides after the 2000 presidential election. But the two agree Proposition 8 is unconstitutional.

“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.

“Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not,” Olson added.

Gay rights advocates have scored a series of victories in recent months, as states like Vermont, Maine and Washington have taken major steps towards allowing homosexual couples to marry. The Iowa Supreme Court approved same-sex marriages earlier this year as well.

But gay rights groups are less than enthusiastic about the lawsuit in California. Pro-gay rights organizations have long been hesitant about bringing a federal suit on marriage that could make its way to the U.S. Supreme Court because of concerns that the current court could issue an unfavorable ruling.

“There’s always been the option to file a federal lawsuit because the denial of the freedom to marry does violate the U.S. Constitution,” said Evan Wolfson, executive director of Freedom to Marry and author of the book Why Marriage Matters. “The question is, when is the right time to bring a lawsuit as opposed to doing all the other work best able to advance the cause?”

“Now is probably not the right time to roll the dice in front of the current justices,” Wolfson added.

Wolfson’s organization, along with eight other pro-gay groups, released a joint statement late Wednesday cautioning against hasty lawsuits. The groups published a document — “Why the Ballot Box and Not The Courts Should Be the Next Step on Marriage in California” — arguing that the Supreme Court isn’t likely to rule in their favor.

But the California suit, some feel, could open a door for those who would seek to overturn Proposition 8, and perhaps for a larger pro-marriage argument. In allowing marriages that had already taken place to stand, the court created a two-tiered system by which some gays who are not married exist in a different legal category than those who made it to the altar in time.