"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative US Supreme Court precedent," said Shannon Minter, of National Center for Lesbian Rights.
On Tuesday, lawyers Theodore B. Olson and David Boies, who represented opposing sides in the 2000 Bush v. Gore election challenge, announced they had filed a lawsuit in federal court on behalf of two gay men and two gay women.
Their case argues that California's voter-enacted ban on same-sex marriage, known as Proposition 8, violates the US Constitution's guarantee of equal protection and due process.
Olson said he hopes the suit, which seeks a preliminary injunction against the California measure until the case is resolved, will wind up before the US Supreme Court.
A favorable ruling there would allow gays and lesbians to get married in every state, just as the court's 1967 ruling in a Virginia case outlawed prohibitions on interracial marriage.
"There will be many people who will think this is not the time to go to federal," Olson said yesterday at a news conference in Los Angeles. "Both David and I have studied the court for more years than probably either one of us would like to admit. We think we know what we are doing."
Boies agreed: "Reasonable minds can differ, but when you have people being denied civil rights today, I think it is impossible as lawyers and as an American to say, 'No, you have to wait, now is not the right time.' I think if we had done that in prior civil rights battles, we would not be where we are."
Chad Griffin, a gay political consultant and former aide to President Bill Clinton, said he approached Olson about taking on the case several months ago while the California Supreme Court was considering several legal challenges to Proposition 8.
On Tuesday, the court rejected those challenges and upheld the state's gay marriage ban. The court said same-sex couples still have the right to civil unions and the law does not "entirely repeal or abrogate" the right to a protected relationship.
The California court last year ruled that denying same-sex couples the right to wed violated the state constitution. An estimated 18,000 gay couples married in the months preceding the passage in November of Proposition 8, which changed the constitution to say marriage can only be between a man and a woman.
While upholding the ban Tuesday, the justices said the marriages conducted while such unions were allowed could stand.
