It's apparently been filed by David Boies and, interestingly, Bush SG Ted Olson:

“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.”

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

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.”

I doubt Olson is right about the timing, but no doubt this ups the ante on any future Supreme Court vacancies for Obama. (There's already a challenge to the federal DOMA in the First Circuit.)

(HT: Chris Geidner.)

To be honest, when I first heard that former Bush Solicitor General Ted Olson, a rock-solid member of the conservative legal movement, had filed a federal lawsuit to invalidate Prop 8 I thought it was an Internet hoax. So I held off posting about it for awhile last night. It was a surprise because I had no idea Olson supported equality for gays and lesbians, much less full marriage rights. It was doubly a surprise because, even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism.

But, behold, here is Ted Olson in a press release today explaining the merits of the case just filed, in which he and David Boies have requested a preliminary injunction:

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said. “Every American has a right to full equality under the law. Same sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second class status.” . . .

Today’s lawsuit argues that the California’s Constitution -- as amended by Proposition 8 -- violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply. Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

· Violates the Due Process Clause by impinging on fundamental liberties.

· Violates the Equal Protection Clause of the Fourteenth Amendment.

· Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

· Discriminates on the basis of gender.

· Discriminates on the basis of sexual orientation.

[Plaintiffs] Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. . . . Paul Katami and Jeff Zarrillo have been together for 8 years. . . . Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage.

You can view the press conference and see the Complaint by following the link above.