Gay-marriage advocates wary of federal appeal of Calif. decision

Spurned by the California Supreme Court, gay couples wanting to marry appealed to the federal courts Wednesday to strike down Proposition 8 as unconstitutional state interference in a citizen's fundamental right to lawful wedlock.

The lawsuit brought by two high-powered lawyers and unlikely allies, former Bush administration Solicitor General Theodore Olson and his Bush-vs.-Gore opponent David Boies, was met with skepticism about the conservative Olson's motives for getting involved in a civil-rights battle usually spearheaded by liberals.

The challenge brought in U.S. District Court in San Francisco also worried gay-rights advocates, who have avoided taking the issue to federal court because of the predominance of conservative judges on the federal bench and the risk of adverse rulings.

A coalition of nine gay-rights advocacy groups called the suit "premature" and warned that, without more groundwork, the U.S. Supreme Court doesn't seem likely to rule that same-sex couples are entitled to marry. The groups urged those disappointed by Tuesday's ruling upholding Proposition 8's ban on gay marriage to pursue their rights through another voter initiative or the state Legislature.

"Test cases can blow up in your face," said Matt Coles, head of the American Civil Liberties Union program on gay-rights issues. "It was a test case that enshrined separate-but-equal in the U.S. Constitution for 58 years. Test cases don't always work, and you have to make a thoughtful judgment about whether to raise them or not."

Olson and Boies, acting as co-counsel for the first time, argued that inaction for fear of a court setback was unacceptable when gay couples, such as the clients who silently flanked them at a news conference, are being denied the fundamental right of marriage.

"There will be many people who will think this is not the time to go to federal court," Olson conceded. Noting his record arguing before the Supreme Court — 54 cases — and Boies' successful career as a litigator, Olson asserted: "We think we know what we are doing."

"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,' " Boies added.

Olson, allied with conservative groups such as the Federalist Society, was challenged as to his reasons for taking up the cause of same-sex marriage.

"I don't think I've ever been part of any organization that was anti-gay or felt that a group was not entitled to equal rights," Olson replied. "I hope that people don't suspect my motives."