This was a bit of a surprise when I heard about it, but apparently Ted Olson has joined forces with the Equal Rights Foundation and they’ve just sent out a press release about yesterday’s decision.

Here are some key excerpts (.pdf) …

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.” […]

Today’s lawsuit argues that the California’s Constitution — as amended by Proposition 8 — violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply.

Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

  • Violates the Due Process Clause by impinging on fundamental liberties.
  • Violates the Equal Protection Clause of the Fourteenth Amendment.
  • Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
  • Discriminates on the basis of gender.
  • Discriminates on the basis of sexual orientation.

That’s a lot stronger case than I thought it would be, and maybe they’re right to challenge this one. But the key difference between Loving v. Virginia and this case is that racial identity is pretty much fixed, while it can be argued that sexual identity is not necessarily. Sure, we make sure folks can’t discriminate based on sexual orientation, but that doesn’t infer marital rights to those folks. Of course, then it gets into the idea that bisexuals should be allowed to marry whoever they want, and I’m obviously fine with that too. But there’s a difference and it will be brought up.

Also, common sense tells me that if the liberal CA Supreme Court voted against overturning Prop 8 by 6 to 1, does anybody think the US Supreme Court will overturn that? Seems highly unlikely, so they could be handing their opponents a very easy win. (Note: This case is different than the one the CA Supreme Court just decided. My apologies for the confusion, but it also means their case is MUCH stronger now.)

Regardless, it’ll be an interesting case and this could be a watershed moment for gay marriage…one way or another.

(h/t: Volokh)

Politics Former Former Bush Solicitor General Wants To Overturn Prop 8