Gay groups say federal marriage suit premature

updated 2:57 p.m. ET May 27, 2009

SAN FRANCISCO - A coalition of gay-rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

"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 U.S. Supreme Court precedent," said Shannon Minter, legal director 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 U.S. 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 U.S. Supreme Court.

'Second-class citizenship'
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 Wednesday 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."

Video   Gay marriage fight far from over May 27: While the Calif. Supreme Court may have upheld the ban on gay marriage in the state, supporters of the ban, and of gay rights, prepare for next fight. NBC's Leanne Gregg reports. NBC News Channel

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.

"For even one couple to live through even one more day in state-sanctioned second-class citizenship is too long," Griffin said.

Also Wednesday, gay-rights activists planned to gather outside a Beverly Hills hotel to demonstrate as President Barack Obama arrived for a fundraiser.

Organizers said the rally at the Beverly Hilton Hotel will highlight anger over the gay marriage ban ruling and support for a move to repeal the military's "Don't Ask. Don't Tell" policy on accepting gays.

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.

Back to the ballot?
Gay leaders, meanwhile, say they are moving into campaign mode with an eye toward trying to repeal Proposition 8 at the ballot box as early as next year.

"So the court has said we have to go back," said Geoffrey Kors, executive director of the gay rights group Equality California. "We believe the political drive, the momentum, is there to do that."

Gay-marriage opponents, who in recent months have seen four more states join Massachusetts in extending marriage rights to gays and lesbians, praised the ruling.

Video   'What's so dangerous about us?' May 26: A gay couple wed before the the California Supreme Court ruling speaks out. Nightly News

"The voters have decided this issue and their views should be respected," said Andrew P. Pugno, a lawyer for ProtectMarriage.com, the leading group behind the initiative.

Proposition 8 proponents do not plan to challenge the existing gay marriages that were protected by the court, Pugno said.

"We see it as really a minor point in ultimately the will of the people being upheld," he said.

'Marriage equality'
Protests of the court's decision were held across the nation Tuesday. In St. Louis, activists gathered in front of City Hall, its rotunda pillars draped in an expansive rainbow flag. Ed Reggi, who married his partner of 10 years this month in Iowa, challenged the crowd of about 200 to speak out on the issue.

"Tell an old friend and a new stranger that we are gay, partnered, married, widowed and in mourning," said Reggi, 37. "Tell them how important marriage equality is to you."

In Los Angeles, about 100 people sat down in an intersection near the University of California, Los Angeles during rush hour and several hundred protesters gathered at a rally in West Hollywood where actress Drew Barrymore addressed the crowd.

"Children need families, people need to love and we need to move forward, not backward," Barrymore said. "What defines a family? We do!"

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