First Prop 8 federal challenge looks like a winner

May 27, 11:47 PMInternational LGBT Issues ExaminerKelvin Lynch

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The Prop 8 debate is far from settled, despite what you may have heard from Prop 8 supporters yesterday declaring victory.

The American Foundation for Equal Rights has filed suit in federal court in California on behalf of two same-sex couples, seeking to strike Prop 8 as unconstitutional.  The suit also seeks a premilinary injunction to prevent Prop 8 from being enforced until the matter is resolved, which would immediately reinstate the right of same-sex couples to marry in California.

Attorneys Ted Olson and David Boies, who famously argued on opposite sides in the Bush v. Gore case in 2000, are representing two same-sex couples who wish to marry in California.  Olson and Boies argue, among other things, that the California Supreme Court's ruling upholding Prop 8  violates the 14th Amendment of the US Constitution by creating a class of "second-class citizens."

A press release issued by Olson and Boies said,

"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.  These are our neighbors, co-workers, 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."

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 

The two couples filing the suit are Kris Perry and Sandy Stier , and Paul Katami and Jeff Zariilo.

Kris and Sandy have been together for 9 years and are the parents of four boys.  They first tried to marry in 2004, after the City of San Francisco began issuing licenses.   They live in Berkeley.

Paul and Jeff Zarrillo have been together for 8 years and live in Burbank.  Having wanted to marry each other for more than two years, they considered options including traveling to other states for a "civil union," but felt any alternative fell short of marriage.

Some gay rights groups are criticizing the suit, saying the timing isn't right.  However, Olson and Boies, appearing together on CNN, said they were "100% confident the suit would succeed", and that "nobody should be forced to wait to enjoy their Constitutionally-guaranteed rights."

When CNN brought up the fact that President Obama does not support same-sex marriage, Olson replied, "well, maybe he'll get on board now."

By all accounts, the suit has a great chance of success, since Prop 8 blatantly disregards the protections of the United States Constitution upon the citizens of California.  This suit is just the first of many more challenges to come.  Stay tuned.

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