American Foundation for Equal Rights

Proposition 8 Challenged in Federal Court; Ted Olson & David Boies to Argue Case

Attorneys Argued Bush v. Gore on Opposite Sides; Now Joined to Strike Down Prop. 8 Filing also calls for injunction against same-sex marriage ban until case is resolved, which would immediately reinstate the right of all Californians to marry

LOS ANGELES – A lawsuit filed in federal district court states that Proposition 8 – which eliminated the right of same sex couples to marry in California — creates a class of “second-class citizens” and thereby violates the U.S. Constitution. The suit also calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights to same sex couples.

“This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment of the United States Constitution,” the suit states.

The suit was filed by two same-sex couples who wish to be married but, because of Proposition 8, have been denied marriage licenses.

The plaintiffs are represented by Theodore B. Olson and David Boies. Olson, a former U.S. Solicitor General, represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. Olson, widely regarded as one of the nation’s preeminent constitutional lawyers, has argued 54 cases in the U.S. Supreme Court.

Boies ranks as one of the leading trial lawyers of his generation, having secured landmark victories for clients in numerous areas of the law. This is the first time they have served alongside each other as co-counsel. The case is a project of the American Foundation for Equal Rights. It was filed Friday in the United States District Court, Northern District of California.

Today, a preliminary injunction was filed with the court requesting an immediate halt to the enforcement of Proposition 8 pending the case’s outcome.

“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.”

“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said. “Every American has a right to full equality under the law. Same sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second class status.”

In May 2008, the California Supreme Court ruled that the state’s law prohibiting same sex marriage was unconstitutional under the privacy, due process and equal protection guarantees of the California Constitution. Proposition 8 was passed in November 2008 to amend the California Constitution to eliminate the equal rights it guaranteed to same sex couples. On May 26, the California Supreme Court upheld Proposition 8 as a valid amendment to the State’s Constitution.

The plaintiffs in the case are Kris Perry & Sandy Stier, and Paul Katami & Jeff Zarrillo. They issued the following joint statement today: “We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans, which is the promise that makes this nation so great.”

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.

Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. Perry is Executive Director of First 5 California, a state agency that promotes education and health for children under five. She holds a BA from UC Santa Cruz and an MSW from San Francisco State University. Stier is Information Technology Director for the Alameda County Behavioral Health Care Services Agency. She is originally from Iowa and is a graduate of the University of Iowa. Perry and Stier first tried to marry in 2004, after the City of San Francisco began issuing licenses. They live in Berkeley, CA.

Paul Katami and Jeff Zarrillo have been together for 8 years. Katami is a fitness expert and business owner who graduated from Santa Clara University before receiving his graduate degree from UCLA. Zarrillo is the General Manager of a theater exhibition company. A native of New Jersey, Zarrillo graduated from Montclair State University. 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. They live in Burbank, CA.

The newly created American Foundation for Equal Rights is dedicated to protecting and advancing equal rights for every American through legal and policy advocacy. For more information, visit


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