Theodore Olson And David Boies, Bush v. Gore Lawyers, Join Forces To Challenge Proposition 8

AP: SAN FRANCISCO - A coalition of gay rights groups said Wednesday that a federal same-sex marriage lawsuit brought by two high-profile lawyers is premature and they'd rather work through state legislatures and voters to win wedding rights.

A day after the California Supreme Court upheld a voter-approved ban on gay marriage, the American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

"In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights.

On Tuesday, lawyers Theodore B. Olson and David Boies, who represented opposing sides in the 2000 Bush v. Gore election challenge, announced they had filed a lawsuit in federal court on behalf of two gay men and two gay women.

Their case argues that California's voter-enacted ban on same-sex marriage, known as Proposition 8, violates the U.S. Constitution's guarantee of equal protection and due process.

Olson said he hopes the suit, which seeks a preliminary injunction against the California measure until the case is resolved, will wind up before the U.S. Supreme Court.

A favorable ruling there would allow gays and lesbians to get married in every state, just as the court's 1967 ruling in a Virginia case outlawed prohibitions on interracial marriage.

"There will be many people who will think this is not the time to go to federal," Olson said Wednesday at a news conference in Los Angeles. "Both David and I have studied the court for more years than probably either one of us would like to admit. We think we know what we are doing."

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Boies agreed: "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.' I think if we had done that in prior civil rights battles, we would not be where we are."

Chad Griffin, a gay political consultant and former aide to President Bill Clinton, said he approached Olson about taking on the case several months ago while the California Supreme Court was considering several legal challenges to Proposition 8.

On Tuesday, the court rejected those challenges and upheld the state's gay marriage ban. The court said same-sex couples still have the right to civil unions and the law does not "entirely repeal or abrogate" the right to a protected relationship.

"For even one couple to live through even one more day in state-sanctioned second-class citizenship is too long," Griffin said.

The California court last year ruled that denying same-sex couples the right to wed violated the state constitution. An estimated 18,000 gay couples married in the months preceding the passage in November of Proposition 8, which changed the constitution to say marriage can only be between a man and a woman.

While upholding the ban Tuesday, the justices said the marriages cond

Comments

[PA Farmer]

"Reasonable minds can differ"

Equal Protection and eliminating "people being denied civil rights" is certainly a worthy cause. Mr. Boies implies that in this issue - there is no debate; only those with unreasonable minds could hold the view opposite of him. I wish Mr. Boies all the best in persuading the court to indeed see the opposition to his beliefs as unreasonable - and win the case.

Are those unreasonable views concerning civil rights simply motivated by a fear of a societal agenda by “reasonable” persons that goes beyond the law of "marriage"? Is that emotional bias over the exact use of the term “marriage” based on defining that term with a word that also emotionally motivates the reasonable people to seek equal protection - "normal"?

Although mostly implied and certainly less incendiary than words commonly used in the past, "odd" or "abnormal" have the same implications. If "marriage" is codified as available to all, and even if the next day those proponents of this civil right proclaim that all relationships covered under “marriage” are "normal” – is it really something to fear in it secular (legal) form?

... We all need to simply accept that as reasonable persons, in public life, we make different choices, and that making different choices is indeed normal (not odd or abnormal), keep subjective opinions that judge those choices to ourselves and / or within our constitutionally separated and protected religious organizations - and get on with life.

[jordan3189]

Than Gore v. Bush: Olson -equal protection Boies- no equal protection Now Prop 8: Olson- equal protection Boies- equal protection. Whose the paid hit man here?

[bbmill37]

I'm going to try again, since my first post was evidently not to HuffPo's liking. (Must you AGREE with everyone else to get your comment printed?)
As I tried to say, politely, that I am embarrassed by these two, especially David Boies. There are too many important issues in this country to take up the Court's time on this nonsense. Why aren't they using their skills and energy to prosecute the war crimes that have been committed in our names?
And as I said in my 1st post, the G&L community is NOT asking for EQUAL rights, they are asking for NEW rights. They already have the same rights as the rest of us, to marry a person of the opposite sex. Portraying what they want in this rosy scenario is ignoring the fact that it is an abomination and defies human logic. That's what they're asking for.
P.S., can I marry my Yorkie???

[richdibo]

NEW rights? No one has ever married before?

You can try to marry your Yorkie, but she will turn you down.

[flowedtan]

thanks for being so polite ....no you can't marry your yorkie silly - your yorkie is not a human being - or a tax paying citizen of the united states - oh also i doubt you would want your daughter or sister or any woman to marry me - i'm gay - that would be terribly unfair to any woman....tho i do consider myself a great catch for another tax paying gay male of legal age.......

[Beth Daniels]

Your argument that this a "new" right has been made before -- in anti-miscegenation cases. Before the Supreme Court struck down those laws as unconstitutional, the argument was frequently made (and upheld) that there was no equal protection problem because each partner was free to marry someone of the same race and "both the white and the non-white spouse were punished equally for the crime of miscegenation." (Naim v. Naim, 1955, Virginia Sup. Ct.)

That exact argument was made and rejected before the California Supreme Court in May of last year. What marriage does that is different from domestic partnership, for instance, is allow two married people to live in separate jurisdictions and enjoy the rights and responsibilities of marriage, which domestic partnership does not. Say you're in the armed forces and have to support a family while you're deployed, and if you're injured in combat in the service of your country, your family can visit you and take care of you...

...oh wait.

Anyway, I always find it interesting that people who find support for same-sex marriage "illogical" run straight to the argument that gay marriage inevitably leads to cross-species marriage, incest, and polygamy. The great fallacy that "This thing makes me feel icky, therefore it is the same as all these other things that make me feel icky."

[midknightryder13]

Actually, they are equal rights -- the request is to make the law read essentially like this -- Any MAN can marry any ONE woman or any ONE man and any WOMAN can marry any ONE woman or any ONE man.

Now, since that law would apply to EVERY PERSON who is of the age of consent -- HOW again is that NOT equal rights?

[HottBrainsJill]

you lost me at "nonsense".

[chriss0114]

these guys have huge egos and want to be giants in history

I fear the right wing court and like another poster stated the like Roe v Wade, it may be a coninuing battle Royale whereas legislated civil rights are pretty much a non-issue except for the cases where a litigant sues someone or an entity for discrimination

it is too early to go to the supremes (or not so supremes)

[richdibo]

Their resumes are already very impressive. They really don't need the work.

[LMPE]

I bet that the hardcore Christians who backed Bush now consider his lawyer a traitor.

[richdibo]

All lawyers are traitors.

[Olbys Ag'Schooldiploma]

lets all hope they have the same success.

[Allocator2008]

Mssrs. Olsen and Boies will go down in history as the Clarence Darrows of our day.

The anti-marriage equality forces shall inherit the wind.

[raker]

In other news, foxes are fighting for greater protections for chickens, offering to design sturdier fox-proof chicken coops.

[cblcar]

It takes an enormous amount of resources to get a case through the system to the Supreme Court. It's unlikely their clients are footing the bill, which means these guys are probably doing this pro bono. I doubt they would expend such resources unless they were pretty confident they would win. They both have huge egos and winning is everything. This must be addressed at the federal level and I can think of no better lawyers to do so. I see this as very good news.

[exxman]

I agree that this issue needs to be addressed at the federal level but I believe it is an issue best dealt with by the legislative rather than judicial branch of government. Black civil rights were legislated federally and that has been that. Abortion rights were decided judicially and it has been a battle royal ever since.

[dm10003]

it's not quite that simple -- churches battled for civil rights. churches battle against abortion and sex eduation and family planning.

[dm10003]

straights need leaders to look to to realize it's gonna be okay in an lgbt inclusive world. if it's ambulance chasers initially, it at least helps create more awareness that individual families can adopt.

[wordvarc]

Olsen's a 'wild card.'

[imusintheevening]

agreed, but he is claiming interest for all the right reasons so it must be that his interpretation of the 14th amendment is more important than his party's ideology.

[Dots]

Thank You Chad Griffin.
God Bless Ted Olson and David Boies.

[nanjemoy]

But if gays get married, are weddings going to have to go up in price? What about tuxedo rentals, they are already sky high. There is a clear economic argument against gay weddings. Have you tried to book a good venue recently? It's scandalous. Those gays - with their 10% of the population - just going to ruin it for the rest of us. And besides, two brides? Two? How am I ever going to compete with that?

For these reasons and more, I think we should deny the rights of this group.

[hackerblaster]

hehe

[justLinda]

You are joking but I saw on another website were someone was arguing against gay marriage because it would just add to the already crowded conditions in the divorce courts. Seems his last divorce took two years and he doesn’t want his next to take three. So much for the sanctity of marriage defense there.
I would guess the truth is people don’t want gays to get married because the idea of homosexuality just makes them uncomfortable. And the argument they are now offering against same-sex marriages are just their best rationalization to justify how they feel. After all most of the serious arguments out there against same-sex marriage were raised in the past against equal rights for blacks or interracial marriage and they didn’t hold water back then and they don’t hold water now. Remember, “Separate but equal”.

[havegonedc]

WEST WING QUOTE OF THE DAY:

From the episode, "17" written by Aaron Sorkin...
(Note how this quote can be applied directly to calling for a special "Gay Marriage" law...)

Telling Sam Seaborn why she, a woman, can possibly be against the "Equal Rights Amendment"...

"Because it's humiliating. A new amendment we vote on declaring that I am equal under the law to a man? I'm mortified to discover there's reason to believe I wasn't before. I'm a citizen of this country. I'm not a special subset in need of your protection. I do not have to have my rights handed down to me by a bunch of old white men. The same Article 14 that protects you protects me. And I went to law school just to make sure."

[dm92]

I think this is a watershed moment - Olsen has nothing to prove here - I think his motives are pure.

[havegonedc]

Yes!

[GlennInVenice]

As far as trusting conservatives, remember that the CA Supreme Court (8 Republicans, 1 Democrat) did the right thing when it came to gay marriage. In their opinion 1 year ago they called it an inalienable right and opened the door to the 18k gay marriages that they latter upheld. With the Tuesday opinion, in the first page, they reminded us of the history and that the new decision was specific to the process used with Prop H8. In the case of CA, conservatives did the right thing - it was our neighbors and our odd constitution that let us down. OK, and they should have not supported Prop 8 on the basis of equal treatment by law but the legislature should have long ago stepped in BEFORE 8 went to vote.