Update 12:35 PM PST: The complaint that is being filed can be found here. Also, a memo released by the ACLU makes some of the same points that I raised earlier in the original post, mainly voicing my concern that pursuing the next step by filing a lawsuit in the federal government isn’t the right move. With the issue in the spotlight for now, there are sure to be developments and TLL will watch the issue closely.

Boies, Schiller & Flexner’s David Boies and Gibson Dunn’s Ted Olson have teamed up and will today announce the filing of federal challenge to Proposition 8. For those of you who don’t recognize those names, think back to Bush v. Gore back in 2000. Yup, Boies and Olson were opponents standing on the opposite sides of the podium back in 2000, with Olson defending Bush as then-Solicitor General. The case is a project of the newly created American Foundation for Equal Rights, which is dedicated to protecting and advancing equal rights for every American through legal, policy and political advocacy. The suit that this odd-couple plans to file calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights for same sex couples. Olson had the following to say about the upcoming federal challenge.

“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.”

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.” (Via The Advocate)

Is a federal challenge really the way to go on this? What decisions by the U.S. Supreme Court as of late make it clear to Olson that the timing is right to pursue this at the federal level? From what I remember, this court is decidedly right-leaning at the moment. Chief Justice Roberts has a history for siding with the defense and has rarely, if ever, voted outside of the conservative fold. And he has strong allies on the conservative side in Alito, Scalia and Thomas (aka Scalia). I understand that people are upset over the California ruling yesterday, but jumping the gun and diving into federal waters is not the best idea. It amounts to a hail-mary when what Californians really need to do is try to settle their differences with those who voted Yes on 8. There is no reason that we Californians shouldn’t be able to fix this mess by amending the Constitution in the future to allow for same-sex marriages. The pendulum swings both ways here. In fact, Equality California (one of the plaintiffs in the Prop. 8 case) has already begun the signature process and is moving forward to put the issue back on the November 2010 ballot. Why then does the issue need to go federal?

Granted, the federal challenge will take years to make its way over to the Supreme Court, and perhaps Olson and Boies are banking on President Obama being able to nominate at least one more Justice after Sotomayor (assuming she is seated). But my main issue with the entire posture of taking this to the federal level is that the issue of same-sex marriage should be kept at the state level. If one state believes that its homosexual populace has the right to marry, then their beliefs should not be forced upon other states who do not share that belief by a federal ruling stating gay marriage is legal. Not even a strong minority of states lean this way on the issue of gay rights, so it seems patently wrong to proceed on the federal level here.  This seems more like an epic gamble, especially coming from someone like Olson. I am not sure that him being “reasonably confident” in attacking the issue at the penultimate level makes risking losing the issue in a much more final way worth it. There are too many variables left unsettled, and this amounts to jumping the gun.