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New Prop. 8 court challenge brings former legal rivals together

The California Supreme Court failed to protect gay couples' fundamental right to marry when it upheld Proposition 8, forcing same-sex couples to appeal to the federal courts to remedy the injustice, two prominent lawyers said today in announcing a lawsuit on behalf of two gay couples.

Me1_kkbemjnc Former U.S. Solicitor General Theodore Olson, a renowned conservative, and David Boies, who opposed Olson in Bush v. Gore in the 2000 fight over the presidential election, cast their collaborative effort to restore the right of gays to marry in California as a moral imperative to correct an injustice. Their suit seeks an immediate injunction on Prop. 8's ban, thereby allowing same-sex marriages to resume while the case makes its way through the federal court system.

But Olson's role in the gay rights mission prompted much speculation about his motives. The former Bush administration official, who lost his wife in the Sept. 11 terror attacks, conceded that the federal courts might not be ready to recognize sexual orientation as a class in need of protection from discrimination, but he said he hoped "that people don't suspect my motives," vowing to demonstrate his commitment to equal rights by winning the challenge.

Boies vouched for Olson as "committed in heart and soul to equality and committed in heart and soul to the Constitution."

Both lawyers, flanked by the two gay couples they represent in the lawsuit, compared the fight for same-sex marriage rights to previous civil rights campaigns and said it was wrong to urge their clients to wait for their fundamental rights for another decade or longer because of the current conservative domination of the federal bench.

--Carol J. Williams

Interact140 Interactive map of milestones in the gay marriage battle and how state laws have changed since 2000

Photos: Attorneys Theodore B. Olson, right, and David Boies take questions during a press conference Wednesday morning at the Biltmore Hotel in downtown Los Angeles.  Credit: Al  Seib  / Los Angeles Times

Comments () | Archives (65)

The recent legal and essentially moral debate over the marital status of same-sex couples in the state of California is quite an interesting one, one that cannot be described as a human rights issue as so many people wish to frame it. It is not a human rights or even more broadly equal rights for there is not a single right that is denied same-sex couples in the state of California. Aside from name, same-sex couples are afforded all the rights and privileges as hetero sexual couples by the laws of the great state of California. Granting them the "right" to be called married is not a right at all, it is an issue of language, and language is the most fundamental tool for expressing ideas. If same-sex couples are allowed to be called married, it would afford them no legal rights they are currently lacking, either in the state of California or anywhere else in the United States of America.

Even if California were to extend the term marriage to include same-sex couples, they would still face the same problems as they do now in terms of inheritance, hospital visitation outside the state of California, for their marriage would only be legally valid within the borders of states that have also chosen to apply the term marriage to same-sex relationships. Other issues, such as hosting and sponsoring immigrants would also remain unaltered; being as they are issues that fall under Federal jurisdiction and the state of California has no say over such matters.

So, if applying the term marriage to same-sex couples under California law would not grant same-sex couples a single legal right or privilege they are currently denied, either within the state of California or anywhere else in the entire United States of America, why are proponents of same-sex marriage working so hard to have the term marriage be applied to same-sex unions?

The answer to this question, lies at the heart of the opponents of same-sex marriage. This fact definitively bears witness to the fact that the issue has nothing to do with human rights whatsoever, though the vast majority of same-sex marriage proponents attempt to constantly frame it as such in order to invoke American morals of equality and gain the moral high ground while at the same time demoralizing and essentially, demonizing opponents of same-sex marriage.

In the end, as well as the beginning, the "Alpha and Omega" of the issue so to speak, as I alluded to above, is an issue of language and ideology. If it is not legal rights that the proponents of same-sex marriage are after, then what is it? It is acceptance. Proponents of same-sex marriage want same-sex unions to be put on equal footing and be equally accepted, both ideologically and morally by the citizens of the great state of California. Rather than having partners, they want to have husbands and wives. Rather than having unions, they want to have marriages to feel as though their unions are viewed as being both equal and synonymous with heterosexual legal marriages. Thus, it is a battle over ideology, not inalienable rights.

This is why after the Supreme Court of California's ruling to apply the term marriage to same-sex unions there was an immediate mobilization among the citizens of California to draft Proposition 8. Though our legislature has the job of passing laws to keep our society free from oppression, tyranny and anarchy, it does not have the job to define the ideology of California's citizens. The majority of Californians, as demonstrated on November 4, 2008, do not ideologically believe, think or feel that same-sex committed relationships are synonymous to heterosexual marriages. We great citizens DO believe that individual who wish to form same-sex unions do have the inalienable right to have all the rights and privileges that heterosexual couples are accorded under the law, for heterosexuality and homosexuality are moral issues, ones that are subjective, vary from faith to faith and culture to culture. We citizens of California are strong defenders of democracy and defenders of both the California and American Constitutions as well as the Bill of Rights. Thus, we are not going to try and force our personal ideas and choices onto others who do not feel the same.

But…we ask the same in return!

Being that Proposition 8 passed and the citizens of the great state of California made it known that ideologically, they do not believe that the term marriage applies to same-sex couples, whether the Supreme Court of California had ruled to overturn Proposition 8 or to uphold it on March 26, 2009, the proponents of same-sex marriage had already lost the battle. The battle is over acceptance and ideology, on November 4, 2008 the citizens of California made it known that same-sex unions are not considered equal or synonymous with heterosexual marriages. The proponents of same-sex marriage are fighting for acceptance and no matter what laws may be passed or what the California legislature may or may not allow, homosexuality has never and will never be considered equal or synonymous to heterosexuality by California's citizens.

But those who wish for acceptance, claiming that they are denied specific rights, have forgotten who they are fighting with. They are fighting with their neighbors, their friends, families and co-workers, people who both love and respect them. People who would never wish anything but the best for them and never, ever, wish to take away any level of human dignity away from them either through legislation or any other way. Neither would we wish to force our opinions, lifestyle or ideologies upon them. But that is exactly what they are trying to do to us.

So whether the next steps the proponents of same-sex marriage take in their fight, whether it be further state legal battles or those on the federal level, they cannot win. The people of California do not accept homosexuality as equal or synonymous to heterosexuality, time and time again we have spoken in the polls. Even if proponents of same-sex marriage are successful in having their ideas forced upon the majority of their neighbors, family members, friends and co-workers, on paper it may state that homosexuality is considered as equal and synonymous, in our hearts, it will never be so.

So quit fighting for acceptance by "going over our heads" by taking it to higher and higher courts as you did with the legal challenge to Proposition 8. That will never gain you acceptance. We as citizens have shown that we believe you should have every single legal right as heterosexual couples. Please, as fellow citizens, afford us the same respect and courtesy to not force your opinions upon us.

The fix is in.

The bias of the lead paragraph of this article is startling and disturbing. The job of a newspaper is to present the facts, not offer opinions disguised as news stories. This article illustrates how far the Los Angeles Times has fallen. A once great newspaper is great no more.

The people have spoken! Why must this go on. Don't I have rights too?

Legal marriage is not a "right". It is a responsibility, and an obligation.
It denigrates the entire institution of marriage, to treat it as some kind of "reward", or "recognition of love".

The government has no business passing laws to "recognize love" in the first place. Legal marriage has nothing to do with adult love. It is established in order to promote a child being raised by both genders of the human race: "A mother and a father". To lack either of them, leads to a child missing out on a deeper understanding of HALF OF THE HUMAN RACE.

That is why the people of California voted that only the union of "a man and a woman" is legally recognizable as "a marriage".

California's ballot initiative system is fundamentally flawed when it allows the barest margin of a simple majority to strip away fundamental civil rights from an entire demographic of people. Those who bleat about democracy should remember these words from one of our wisest founding fathers, Benjamin Franklin: "Democracy is two wolves and a lamb deciding what to have for dinner. Liberty is a well-armed lamb."

Why are the Feds going to get invovled. The People of California let the voice be heard and the California Surpreme Court did the right thing by supporting what the majority of people in California wanted. The Federal Surpreme Court should accept what the people and the state surpreme court decided on. If someone wants to have same sex marriages...well move to Vermont or Iowa. California is a non-same sex marriage state. If people don't like it.....then leave!

YANGZU not looking for your validation, approval, acceptance, or an invitation from you for thanksgiving dinner.

Just want the rights afforded all men under the us constitution.

ps. you would be welcome at our dinner time for turkey anytime..

Olson and Boies? The original odd couple.

Although "legal marriage" may not be a right, as long as the government recognizes certain relationships AND provides benefits to people in those relationships (visitation rights at hospitals, rights to be part of decisions regarding medical care, income tax filing status benefits, etc.) then the government must also insure that it doesn't discriminate against segments of the people because of color, religion, sexual orientation, etc.

The problem is that the California ballot initiative process needs to be reined in to restore some sense of order to government. Either we hire (i.e. elect) people to make decisions for us and trust them or we should just abolish government and have all citizens vote on EVERY matter that needs to be decided.

Good God, here we go again.......2 more years of rhetoric back and forth before yet another vote on whether the state recognizes gay marriage. I have news for you gay folk that want the recognition, marrige is OVERRATED. HA!

All I can say about these two knuckleheads, Theodore B. Olson and David Boies is that some people will do anything for money including sleeping with the enemy.

It is discouraging to see the postings of people who think that they have the "right" to vote away the rights and privileges of another class of people. The concept is simply evil, as well as un-American.

I'm confident that the Supreme Court will apply the same logic it did when it voted 6-3 to outlaw Amendment 2 in Colorado, which also tried to single gays and lesbians out by denying any protections under state law. It was, of course, the brainchild of pseudo-Christian bigots, just like Prop 8.

Really? You think we're FORCING anything on you? My right to marry MY partner does nothing to take away from YOUR marriage. Who I have sex with is not going to affect you in the slightest. Why on Earth would you be so arrogant as to say that hetero couples are more or better than homo ones? We're no EQUAL? Seriously? WHO are you to judge? And would you say the same if I said that whites and Asians are not equal? Even if it was put to a vote and a SLIM majority of voters said you weren't? What then? Because we are ALL PEOPLE! None are better or more than others...just DIFFERENT! And if my marriage does NOTHING to take away or hurt YOURS...WHY DO YOU CARE?!

Popular vote would have denied civil rights in the 60s. No, Derek, you do not have the right to vote your religious / personal beliefs to control me! Prop 8 created inequality which will ultimately be proved wrong and reversed. It's only a matter of when, not if. Meanwhile, I remain married to my husband.

Civil unions / domestic partnerships do NOT give equal rights! To say so is to demonstrate your ignorance.

If you call a 4 point margin "the people" you also show your ignorance. What about the nearly equal number who supported gay marriage? Don't twist fact.

In response to the comment that legal marriage is not a "right" - your statement is wrong. In loving v. Virginia the US Supreme Court already ruled that "Marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival...."

"The people of California do not accept homosexuality as equal or synonymous to heterosexuality," - This may be true right now, but that does not mean the ban is constitutional. There have been many times through the course of US history that the court's ruling has gone against the opinion of the masses.

Yang Zhu - I appreciate your well thought out, civil and polite response. I agree that the much deeper issue is acceptance, and that many people believe that the state granting the same title to both homo and hetrosexual couples will somehow imply acceptance.

However, if put to a vote, do you think that black and white citizens would have been allowed to marry? Or that Asian American citizens would be allowed to own land?

We live in a country founded on unalienable rights, despite what the "majority" may feel about them. By giving a separate title to marriage, it does essentially show that a group of people is not "accepted" by their own government, just because the stronger voice of their neighbors is against the idea.

Issues that affect a minority can never be left to a majority vote. It's unfair and wrong.

Would we settle to call a marriage between a two people of different races a "bi-racial union" instead of a marriage? Would we tell someone that they can't be a "property owner" but are instead a "grounds keeper?"

Having different titles implies one is lesser than the other.

So the state won't call your relationship "marriage." Nothing prevents you doing so yourself. Just don't require me to do it.

And none of this violates your basic human rights or deprives you of your right to due process. Domestic partners have virtually every significant right that married people have. This is not about gay rights. Gays have rights already. When gays are being physically assaulted, arrested or fired for being gay, then I will fight for your rights.

But this isn't about that. This is about wanting the people to officially approve of your relationships. Basically the gay community wants a big hug from the state, because their parents, neighbors, or co-workers won't give them the approval they crave.

These arguments in favor of gay marriage insult the intelligence of the voters. I refuse to vote for this issue so long as these are the arguments presented for it.

I am sorry - did I just read that "same-sex couples are afforded all the rights and privileges as hetero sexual couples"??? wow, perhaps I did not realize I could apply for a permanent residence in the States through my same-sex partner. Or, that I could file a joined tax form with the same, poor same-sex partner. And the list goes on and on. It is a total, complete, absolute misconception that domestic partnership gives same sex couples the same rights as their heterosexual counterparts. Indeed the fight needs to leave the state borders and get to the federal level! My dear Yang Zhu - guess what, society evolves. And you of all people should know that very well. Should I remind you that Asian Pacific Americans were considered aliens ineligible for citizenship for quite sometime and really were not able to vote until after 1965? or, that 38 states had formal laws prohibiting non-whites from marrying whites until pressure from the civil rights movement changed that in 1967? and, once again guess what, most whites at that time were not exactly in favor of extending such rights to non-whites and, they were using the very same rhetoric you are delighting us with - "homosexuality has never and will never be considered equal or synonymous to heterosexuality by California's citizens", to use your very same words. Who are you to come up with such statements? Oh, wait, I know. You are part of that 52% "majority that voted for prop 8. The remaining 48%? an incident of democracy. Wow.

Any father ever looked through the window and said, "Gee, I hope my kid is gay"? Ever wonder why?

A gay couple will not spawn their own child- regardless of the biological trickery involved.

Sorry, but trying to legislate equality when it ain't so if a fool's errand. A kid living in a wheelchair is unlikely to ever play for the Dodgers either. Deal with it!

Why must Yang Zhu and other supporters of Prop 8 spread lies and distortions in order to further their cause? In fact, there are several significant differences between "marriage" and "domestic partnerships" in California -

* Couples seeking domestic partnership must already share a residence, married couples may be married without living together.

* Couples seeking domestic partnership must be 18 or older, minors can be married before the age of 18 with the consent of their parents.

* California permits married couples the option of
confidential marriage, there is no equivalent institution for domestic partnerships. In confidential marriages, no witnesses are required and the marriage license is not a matter of public record.

* Married partners of state employees are eligible for the CalPERS long-term care insurance plan, domestic partners are not.

* There is, at least according to one appellate ruling, no equivalent of the Putative Spouse Doctrine for domestic partnerships.

* In addition to these differences specific, some countries that recognize same-sex marriages performed in California as valid in their own country, (for example, Israel), do not recognize same-sex domestic partnerships performed in California.

* The use of the word marriage itself constitutes a significant social difference. In the majority opinion of In Re Marriage Cases, the California Supreme Court agreed, suggesting an analogy with a hypothetical that branded interracial marriages "transracial unions".

I got the info above from Wikipedia, and it is readily available in a number of other places, further indicating that supporters of Prop 8 are dishonest, or at best do not make any effort to understand the issue. They are content simply to hate gay people and deny them rights accorded to the majority of citizens.

Equal Rights for All.

Yang Zhu,

I don't care what's in your heart, and I really don't give a rat's a&& whether you accept me or not. But I DO care if my partner is covered under my health insurance if she loses her job, or if the state can take our children from her if I die, or if my family can take our home from her if I die, or (I could go on, but you've got your head so far up your own selfish butt that it's a waste of my time). This isn't about YOU, dude, or your opinion or what you think of your gay relatives or neighbors. We don't care. We really, really, REALLY don't care about your long and meaningless opinion on our lives. We just don't want to live in fear, or be treated like second class citizens. I'm so sorry that's inconvenient to you.

Oh, and by the way, I'm a lesbian and a member of DAR. My ancestors fought for my rights as an American citizen. Your opinion did not enter into the equation then, nor does it now, bub!

The system is fundamentally flawed whenever you vote on rights.

Imagine 50-60 years ago if we voted on whether or not blacks could marry rights, or even each other.

This is not a religious issue, as the state grants marriage licenses, not churches.

Marriage should simply be allowed between 2 consenting adults, no exceptions.

The government needs to get out of the marriage business all together. Unfortunately this would mean major rewrites of the tax code. Therefore they have chosen the easy way out, and will let the people fight it out via initiatives and let courts sort out the resulting legal carnage.

BTW, I've read the New Testamant twice, cover to cover, and I can't find the specific passage where I'm supposed to keep the gays down.

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