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You’ll Never Guess Who’s Behind The Federal Court Challenge To Prop 8

Jim Burroway

May 27th, 2009

The Associated Press is reporting:

Two of the nation’s top litigators who opposed each other in the Bush v. election challenge in 2000 have joined forces to seek federal court intervention in California’s gay marriage controversy. Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

That’s right. Teaming up to fight Prop 8 in the Federal Courts are two lawyers, one of which fought hard to put President George W. Bush in the White House, and one who fought just as hard to try to keep him out. Theodore Olson went on to become Bush’s Solicitor General.

Olson may seem like an unlikely person to tackle a quixotic attempt to overturn Prop 8 in federal court (I don’t think it stands a whisper of a chance), but Olson seems committed. This is what he told the Washington Examiner:

“I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions,” Olson told me Tuesday night.  “I thought their cause was just.”

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California.  “It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution,” Olson said. “The constitution protects individuals’ basic rights that cannot be taken away by a vote.  If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution.  We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation.”

This is huge. Olson is as conserviative as they come. As John Aravosis at AmericaBlog points out, Olsen much more than a mere Bush White House operative (Warning: noisy ads at AmericaBlog):

He was a member of the board of the American Spectator, the magazine that investigated Bill Clinton in the early 90s, and got that entire ball of wax rolling. Olson was the guy who was so conservative that Harry Reid torpedoed Bush’s desire to make Olson Attorney General after Gonzales. Olson is so conservative that Bob Novak (aka Novakula) called him “highly esteemed.”

It just goes to show, you never know where our allies will come from next. It’s also the best example I can think of to remember that the hard work of dialog with those who oppose us is a worthy effort. And if there was ever reason to be optimistic about where we’re headed, this is another one. Olson joins John McCain’s chief strategist Steve Schmidt and McCain’s daughter Meghan as outspoken supporters for marriage equality.

(via Towleroad)

(via Towleroad)

And all of this of course begs raises the question: where are Obama and the Democrats?



May 27th, 2009 | LINK

“And all of this of course begs the question: where are Obama and the Democrats?”

No it doesn’t. It raises the question, but doesn’t beg it. Yeah, just a pet peeve of mine….

Nick Literski
May 27th, 2009 | LINK

Given the current makeup of the Supreme Court, most have considered it a poor time to take marriage equality issues to the federal level. If I was an unethical attorney, and a strong social conservative, it would make sense to push the issue to the current SCOTUS, with the intended purpose of receiving their likely unfavorable ruling as precedent.

Ben in Oakland
May 27th, 2009 | LINK

Just what I was thinking. I’m against it.

May 27th, 2009 | LINK

Any issue on Gay Marriage needs to get Baker V. Nelson reversed first. Lower courts can’t hear a case till SCOTUS reverses its decision that it isn’t a substantial Federal question.

(I think you could get California’s Statutory/Constitutional Amendment Ballot Initiative process invalidated though. The Constitution guarantees every American a “Republican form of Government” over their State, and one of the important ideas of constitutional republicanism is a hard-to-amend constitution, in order to protect the minority from the whims and wavers of a simple majority. Prop 8. could be used to show California’s Ballot Initiatives make its Government too purely Democratic and not Republican enough, in the legal sense.)

May 27th, 2009 | LINK

So, does the Federal DOMA factor into this at all?

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