Prop. 8 Challenged In Court...And At The Voting Booth?

After a challenge to the Proposition 8 gay marriage ban was struck down by California's Supreme Court in May, there was debate among gay rights groups on what to do next. A federal court challenge? A ballot initiative to overturn it in 2010? The same in 2012?

With a federal court case already gaining momentum, and with field efforts already underway for a ballot initiative, it looks like we'll see both.

A federal lawsuit is now being argued, on behalf of the American Foundation for Equal Rights by the attorneys for George W. Bush and Al Gore in the 2000 election lawsuit, Ted Olson and David Boies, who signed on the day after California's Supreme Court ruled to uphold Prop. 8.

This week, the ACLU, the National Center for Lesbian Rights, and Lambda Legal, a prominent LGBT legal group, are trying to join on.

Before this latest development, gay rights groups seemed to think a court case wasn't such a good idea, and that a ballot initiative to legalize gay marriage in 2010 or 2012 would be preferable. Now that these groups are looking to join the court fight, that's no longer the consensus.

The case has a better chance than the previous appeal, according to Lambda Legal National Marriage Director Jennifer Pizer, because it more closely mirrors the case that won gay marriage rights in 2008, ultimately leading to Prop. 8's inclusion on the ballot in November.

"The legal analysis used in the first litigation that won the right to marry in California--those arguments resonate in federal law," Pizer said.

Lambda, the ACLU, and NCLR are seeking to join the case over the objections of American Foundation for Equal Rights, which has led the challenge since its inception.

After a motion to intervene this week--asking U.S. District Court Judge Vaughn Walker to join the three groups to the case--American Foundation for Equal Rights board president Chad Griffin sent a letter telling them to back off: "You have unrelentingly and unequivocally acted to undermine this case even before it was filed. Considering this, it is inconceivable that you would zealously and effectively litigate this case if you were successful in intervening," Griffin was quoted as saying by the Associated Press. "Therefore, we will vigorously oppose any motion to intervene."

The lawsuit has picked up the support of California Attorney General Jerry Brown, who agreed, in a court filing, that Prop. 8 violates equal protection rights under the Fourteenth Amendment. Gov. Arnold Schwarzenegger, meanwhile, has remained neutral, declining to defend Prop. 8's constitutionality in court.

There is optimism surrounding the federal case--but that's not to say the gay rights movement has chosen a single path in seeking to overturn Prop. 8.

A ballot initiative is still on the table, and we could see one in 2010 or 2012.

"Any case that happens at the federal level, by the time it does its hearing in circuit court and then goes to the appeals court, and then the rare situation where it goes to the U.S. Supreme Court, we're talking about a five year deal here," one source in the gay rights movement said. "I don't think there's any reason to believe the case is going to suddenly put an end to a ballot initiative in 2010 or 2012."

In fact, field efforts are already underway, with some activists ramping up their activity to campaign-season levels, on the assumption that a measure will be on the ballot in 2010.

Equality California and Courage Campaign, two California-based groups, are canvassing door to door in multiple counties, while Human Rights Campaign, a national gay-rights powerhouse, has a field campaign in place and is focusing on faith communities, a demographic that backed Prop. 8 in November.

"We are putting in place everything that we can to mobilize our own members and others," said Rick Jacobs, founder and director of Courage Campaign, whose members voted by 82.5 percent in June to put a measure on the ballot in 2010.

Presented by

Chris Good is a political reporter for ABC News. He was previously an associate editor at The Atlantic and a reporter for The Hill.

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