In a bold move that takes a new approach to achieving marriage equality, two attorneys who argued opposing sides of the 2000 Bush v. Gore lawsuit before the U.S. Supreme Court have filed a challenge to Proposition 8 in federal court, The Advocate has learned.
...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.
This is the right move for proponents of marriage equality, but time will tell if it's the right time. The suit amounts to an all-in bet, promising a huge gain if successful, or a devastating setback if not.
Still, this is necessary to the success of marriage equality. Aaron Zelinsky argues at HuffPo that the Prop 8 decision is good for gay marriage because it places the decision back in the hands of the voters, which he argues will result in more durable laws. I couldn't disagree more. The idea embodied in California's deeply flawed decision, that the majority has the right to vote down the inalienable rights of the minority, is the ground on which this fight must occur. Sending gay couples begging, hats in hands, for their basic rights only validates this tyrannical notion.
As a practical matter, legislative vehicles might result in short-term gains, and should be pursued, but there are parts of the map here that will never catch up.
Gay marriage has made astonishing progress this year, a trend that would have continued Tuesday had California not willfully ignored the central issue of the Prop 8 case. There is every reason to believe that this case will succeed on equal protection grounds. Even if not, at least gay people are not surrendering their rights to a mob.
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