Bush v. Gore Lawyers Challenge Prop 8 in Federal Court

I'm not surprised this lawsuit is being filed, but I am surprised whose filing it:

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.

I'm really disappointed in Ted Olson. I can't believe for a minute that if his late wife Barbara was still alive she'd be kicking his butt all over Washington for getting involved in this (she was a conservative writer and speaker and was killed on 9/11 when American flight 77 crashed into the Pentagon).

In the name of protecting the "rights" of gays to marry, they're trying to deny all Californians the right to amend their constitution. This challenge also has the potential to be the Roe v. Wade of gay marriage, effectively creating a federal right to gay marriage that doesn't currently exist.

Frankly, I don't think this suit will be successful. There is no federal gay marriage law, or federal right to gay marriage. In order for this to be successful one would have to be created.

And let's look at a real nightmare scenario and the reason that I doubt a temporary injunction will be granted. They find a liberal "touchy-feely" judge like Sonia Sotormayor to grant an injunction that instantly legalizes gay marriage again. Couples start getting married, filing joint tax returns, collecting other benefits open only to married couples, etc. The case winds its way to the Supreme Court and once again Prop 8 is upheld.

What do you do now with all those newly minted marriages that occurred between the injunction and the final Supreme Court decision? They'd have to be invalidated, tax returns amended, other benefits returned. It would be a living hell for the couples who fell into the trap.

The other nightmare scenario is that somehow they cobble enough votes together on the Supreme Court to overturn Prop 8. At that point there will be a federal right to gay marriage, and any state which passed constitutional amendments banning gay marriage will find their laws invalidated. Even more of the state's rights will be abrogated by the federal government.

I'm beginning to understand why more and more movements are springing up around the country exploring secession from the federal government. The ever-increasing intrusion of the federal government into lives of individuals and the sovereignty of the states is making secession look better and better.

UPDATE: Gay marriage activists don't want this issue tried in federal court. They might lose.