Prop. 8 has Federal court challenge – will it get bounced?

Wasting no time, Ted Olsen and David Boies, who squared off against each other in Bush v. Gore nearly nine years ago, filed federal suit, and already did so last Friday.

The Advocate notes:

The attorneys argue that relegating same-sex couples to domestic partnerships instead of granting them full marriage rights is a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution.

It sounds great, but a number of states have domestic partnerships on the book and nobody’s ever filed federal suit there. (State suits, different matter.) Since the California Supreme Court specifically kept intact already-performed gay marriages, I don’t see where the two clients of Olsen/Boies can get legal standing.

A federal district court, I would think, would say that marriage was a matter of state law and boot this case in 30 seconds. Now, if the plaintiffs were married in, say Massachusetts, then moved back to California after the California Supreme Court legalized gay marriage, and now had reasonable belief that their marriage could be in jeopardy, they could certainly sue under the “full faith and credit clause.” But that is neither substantive due process nor equal protection.

Beyond this reason, a federal court could argue in another way, since the right to gay marriage once existed in California, and already codified marriages are not being undone, the federal government has no business intervening to rectify a personal choice not to get married before now.

That said, the suit claims “relegating” the two sets of plaintiffs to domestic partnership violates equal protection and due process. I don’t know if that angle, and that word, is enough for a federal court, versus a state that has domestic partnerships and has never allowed gay marriages, or not. It seems a pretty thin reed from this educated, analytical layperson’s angle.

Also, if Olsen and Boies have felt the way they have for some time, why didn’t they consider a suit in one of those other domestic partnership states? Surely somebody has contacted Boies, at least.

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

Agreed, but I still do not think, as smart, and as backgrounded in constitutional law, as you and Boies are, you can get standing for your clients.

So, that said, I think the duo has a better chance in a state outside California, because the domestic partnership idea's never been challenged in federal court, just at the state level.

That said, substantive due process was how gay sexual rights were staked out in Lawrence. But, the court's moved right since then, albeit the Lawrence ruling of 6-3 leaving Alito for O’Connor as a “disposable” vote — IF Kennedy would vote the same as he did on Lawrence. And that is certainly no given.

The ACLU and many gay rights groups worry that it’s a risky strategy, too, on any possible SCOTUS vote.

Another issue: are Boies and Olsen legal spotlight hoggers.?