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Gay marriage battle relaunches today as Prop. 8 is challenged in court

May 27, 2009 |  7:58 am

A new front in the battle over gay marriage in California will open today when two prominent attorneys will challenge Proposition 8 in federal court.

The attorneys, who argued on opposite sides of the Bush vs. Gore election case in 2000, will hold a press conference announcing a federal lawsuit and calls for the restoration of gay marriage until the case is decided.

Former U.S. Solicitor General Theodore B. Olson and David Boies, who represented then-Vice President Al Gore in the contested election, have joined forces to tackle the same-sex-marriage issue, which has deeply divided Californians and left 18,000 gay couples married last year in legal isolation. The lawyers are scheduled to appear this morning at the BIltmore Hotel in downtown Los Angeles.

In a project of the American Foundation for Equal Rights, Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8.

Their lawsuit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.

The California Supreme Court ruled in May 2008 that state law prohibiting same-sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution.

But in November, voters passed Proposition 8, which amended the state Constitution to restrict marriage to between a man and a woman. The high court upheld the voter initiative in a 6-1 ruling Tuesday, with Justice Carlos Moreno dissenting.

Legal scholars have observed that proponents of gay marriage have avoided taking the issue to federal court so far because of the dominance of conservative judges and justices on the federal bench after the eight-year tenure of President George W. Bush.

The U.S. Supreme Court has what usually results in a 5-4 majority against extending rights to gays by recognizing sexual orientation as a vulnerable class of citizens in need of protection.

 And all but one of the 13 federal appeals circuits has a reliable conservative majority. Even the exception, the San Francisco-based U.S. 9th Circuit Court of Appeals, experienced a curtailing of its liberal orientation with Bush’s seven appointments.

-- Carol J. Williams

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