Hm. I have to admit that I'm of two minds on this:
Two prominent attorneys who argued on opposite sides of Bush vs. Gore, the legal battle over the 2000 presidential election, announced Tuesday that they will challenge Proposition 8 in federal court and seek to restore 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.
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 suit, 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.
On one hand, it goes without saying that an accurate interpretation of the US Constitution, as well as the California State Constitution, calls for equal protection for all citizens, and that anyone with a sane grasp of reality understands that sexual orientation should be included as a suspect class, and that denying marriage rights to gays is, simply put, unconstitutional. The California Supreme Court understood that before they decided to lay down and die in front of the bigot steamroller. So, if these lawyers are truly confident that they will win this, then great.
But this is federal court, which means it's very likely to end up at the US Supreme Court, and the Roberts court is still full of absolute buffoons, and it goes without saying that their names are Scalia, Alito, Roberts, and The Molestor. That's four worthless votes from four people whose minds will already be made up before they hear the first argument. So, I'm just not sure the US Supreme Court is grown up enough, yet, to handle something as crucial as civil rights.
As it happens, Freedom to Marry, in concert with other GLBT advocacy organizations, released a statement discouraging people from filing federal lawsuits, as they believe that the voting booth is the next best step in the fight for equality. I'm inclined to agree. At the moment, the 50 US states are so different from each other that, quite frankly, while Iowa may be ready to legalize same-sex marriage, Alabama is still butthurt over the fact that they can't arrest "sodomites" anymore. (Boo hoo, wingnuts.) There will be a time (long before Alabama is ready to legalize same-sex marriage) that the Supreme Court is the appropriate venue, and at that point, Alabamans (really, I hate to just pick out one state, but they're such a good example) will just have to suck it up and deal with the fact that gay people deserve equal rights in a free society. (And if they don't like it, you know, leave.) But at this point, there are enough parts of the country, both geographically and demographically, where public opinion is moving toward supporting equality at a rapid rate relative to, say, the racial civil rights struggles of the mid-20th century. I just have a sense that these attorneys could be pulling the federal court trigger just a little bit too soon.
We shall see, I suppose, but I'm just a bit uncomfortable with it.