By Susan Brinkmann, OCDS
The ink had barely dried on the California Supreme Court decision to uphold a voter-approved ban on same-sex marriage when two of the nation’s top constitutional lawyers filed an appeal in federal court to stop the state from enforcing the ban. However, supporters of same-sex marriage fear the latest legal move is premature and could hurt rather than help their cause in the long run.
According to a report by LifeSiteNews.com, Ted Olson and David Boies, who represented George Bush and Al Gore respectively in the landmark Supreme Court decision that put an end to the contested presidential race of 2000, filed the appeal on behalf of two homosexual couples, arguing that they have a federal right to “marry” a person of the same sex.
“This is a federal question,” Olson told the Associated Press in a telephone interview on Tuesday. “This is about the rights of individuals to be treated equally and not be stigmatized.”
The lawsuit argues that Proposition 8 makes homosexuals “second-class citizens” and violates equal protection and due process under the US Constitution by revoking the right of homosexuals to marry.
Among the precedents cited by Olson and Boies is the 1967 case of Loving v. Virginia, which struck down bans on interracial marriage on the basis of violating equal protection and due process under the 14th Amendment.
While the Supreme Court’s opinion in this case acknowledged that “marriage is one of the basic civil rights of man, fundamental to our very existence and survival” it went on to state “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
“You are not depriving anyone of equal rights to something which they are not entitled by definition,” Dr. Edwin Vieira, a constitutional law expert for over 30 years told LifeSiteNews.com.
“The question arises, and this has always been true, that the states are not bound necessarily to give all rights to all people. Equal protection depends on factual determinations of equality or disparate status,” stated Vieira, who has argued cases several times before the US Supreme Court. “If people are not similarly situated, it is not a denial of equal protection to accord them more or less rights as a matter of state law.”
Homosexual marriage and traditional marriage are not the same thing, Vieira said. “They are factually different things. Then you have to argue at a higher level that certain kinds of relationships are entitled to the same kind of rights.”
He added, “The short answer would be no, because one set of relationships generates familial structures and the other doesn’t in the normal course of events.”
Vieira is not the only person who thinks the lawsuit is doomed to fail. The country’s major legal groups defending gay rights, including the ACLU and the Lambda Legal Defense and Education Fund, don’t think the suit will succeed at the Supreme Court level. If it does fail, in addition to dealing a near death blow to the same-sex marriage movement in the U.S., it will also jeopardize a host of other established gay rights such as foster care, employment discrimination, and others.
Many people in the homosexual community are also suspicious of Olson’s motives because he is such a well-known conservative lawyer. Some speculate that he is pushing the lawsuit now rather than waiting for the Court to become more liberal precisely so that it will fail and put a halt to the same-sex marriage debate.
But Olson denies these charges, saying that he has always been secretly committed to the rights of homosexuals to marry and wasn’t about to tell the couple who came to him for legal help to “sit back and wait 10 to 15 years,” adding that “We think they’re right. We think their constitutional rights are being denied, and we’re going to help them achieve that equality.”
The case will be heard by U.S. District Chief Judge Vaughn Walker of the Northern California district in San Francisco. If Judge Walker’s decision is appealed, it will go to the 9th Circuit Court of Appeals, a federal court known for its judicial activism. A further appeal will take it to the U.S. Supreme Court which will decide to either uphold Proposition 8 or result in possibly legalizing same-sex marriage throughout the country.
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In Same Sex Marriage: An Exercise in Futility, expert Mary Jo Anderson explains the myriad of negative consequences that will result in our society if same-sex “marriage” becomes law. Available on DVD at http://womenofgrace.com/catalog/product_info.php?products_id=112