Same-sex marriage demonstrators wait in front of San Francisco City Hall for the California State Supreme Court to rule on the legality of a voter-approved ban on same-sex unions, Tuesday, May 26, 2009 in San Francisco. (AP Photo/Paul Sakuma)
In the wake of the California Supreme Court's decision to uphold Proposition 8, the state's ban on same-sex marriage, two couples are pursuing a new tactic with a federal court lawsuit.
A lesbian couple from Berkeley and a gay couple from Burbank filed the lawsuit in federal court in San Francisco on Friday.
The lawsuit claims that Proposition 8, enacted by state voters on Nov. 4, violates the couple's federal constitutional rights to due process and equal treatment by denying them the right to marry.
The couples are represented by prominent attorneys Theodore Olson of Washington, D.C., and David Boies of Armonk, N.Y., who argued on opposite sides of the Bush v. Gore case that decided the 2000 presidential election.
Today, the attorneys filed a motion asking for a hearing on July 2 before Chief U.S. District Judge Vaughn Walker in San Francisco on their bid for a preliminary injunction blocking Proposition 8.
The two couples said in a statement today, "We and our relationships should be treated equally under the law. Our goal is to advance the cause of equality for all Americans."
Until now, battles over same-sex marriage in California have centered on the state constitution. A year ago, the California Supreme Court said by a 4-3 vote that the state constitution's guarantee of equal treatment provides a right to gay marriage.
But state voters overturned that ruling when they enacted Proposition 8 by a 52 percent majority last fall as a state constitutional amendment. On Tuesday, the state high court ruled by a 6-1 vote that Proposition 8 was within voters' power to amend the state constitution.
The new lawsuit is based on separate federal constitutional rights.
Among other cases, the lawsuit cites a 1967 ruling in which the U.S. Supreme Court struck down a Virginia ban on interracial marriage and said the freedom to marry is a "vital personal right."
The plaintiffs are Kris Perry and Sandy Stier of Berkeley, who have been together for nine years and have four sons, and Paul Katami and Jeff Zarrillo of Burbank.
Both couples say they tried to get married last week, but were denied marriage licenses by their county clerk's offices because of Proposition 8.