The American Civil Liberties Union and two prominent gay and lesbian legal organizations have filed a brief in support of a lawsuit against California’s Proposition 8, though one attorney said the move is not an endorsement of federal suits that challenge existing state marriage bans.
The suit, Perry vs. Schwarzenegger et. al, was filed in federal court late last month on behalf of two couples who were denied marriage licenses shortly before the California supreme court upheld Prop. 8, which amended the state's constitution to ban same-sex marriage. Theodore B. Olson and David Boies, who argued opposing sides in Bush v. Gore following the 2000 presidential election, represent the four plaintiffs.
Citing landmark U.S. Supreme Court rulings like Loving vs. Virginia, which struck down laws banning interracial marriage, Olson and Boies argue that their clients were discriminated against under federal equal protection guarantees.
In a 23-page brief filed Thursday, the ACLU, Lambda Legal, and the National Center for Lesbian Rights agreed with Olson and Boies that Prop. 8 is unconstitutional, but urged a narrower analysis of the issue as it pertains to marriage inequality in California, rather than the nation as a whole.
In doing so, the suit “is significantly more likely to succeed because it focuses on the singular legal and historical context in which California voters passed Prop. 8,” said Jennifer C. Pizer, senior counsel and marriage project director for Lambda Legal. “When examined in context, the equal protection violation is unique, and stark.”
The three legal groups, along with several national LGBT organizations, have previously spoken out against the filing of such suits in federal court, calling them premature and risky should they end up before the U.S. Supreme Court.
Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown have declined to defend Prop. 8 in federal court, leaving its likely defense in the hands of conservative legal groups like the Alliance Defense Fund, which has filed papers asking a federal judge to allow it to intervene.
A preliminary hearing in the case is scheduled for July 2. U.S. district court judge Vaughn Walker is expected to hear arguments on whether Prop. 8 should be suspended while the suit proceeds
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