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

[CentralVA]

It will be interesting to see how Olsen's fellow Republicans react to his federal constitutional arguments. While many Republicans (particularly the younger ones) support gay marriage, my guess is that few believe that the federal courts are the right institution to bring about this societal change.

[JohnFromCensornati]

I trust Olson about as far as I could throw him.

[mamala4]

Don't you mean throw his toupee?

[jbrantow]

http://www.americablog.com/2009/05/bush-solicitor-general-ted-olson.html

Ted Olson explains his reasonning....well worth reading

[GShotsTV]

A slow and steady course is best.
Why try to tackle the highest hurdle pre-maturely and risk loosing it all.

My 2-cents worth.

http://www.youtube.com/watch?v=ZG78RzXEOdo

Gary Mondfrans

G-Shots by ~GARi-~~
http://www.GShotsTV.com
http://www.YouTUBE.com/GShotsTV

[JerryTheAngel]

There was a black pastor on Larry King that lectured the viewing audience on how children need a mother and a father raising them. Why doesn't this man spend every waking moment trying to improve the out of wedlock birthrate amongst African American couples which is around 75 percent?

I find it insulting that a black man has the audacity to preach to same sex couples about how marriage is so sacred when in his own community, the numbers of children being raised by just one parent is so high. He also insults single parents that do a wonderful job of raising their kids. Like the mother of the new Supreme Court Justice, Sonya Sotomayor.

[Propeity]

Jerry the Angel.

There are a lot of failures within any given population. The mothers of all of the gang members intimidating and threatning violence to our citizens in California, would be an example.

As for Sotomayor, let's just say that without the great job that the parents of Martin Luther King and Rosa Parks, she wouldn't be enjoying the priveledges of being an Hispanic American today. She is clearly not particularly overly qualified. And riding the wave of Hispanic mania-driven by population demographics.

[We-Are-The-Ones]

You had good points until you insulted the qualifications of Sotomayor. She was valedictorian of her high school. She graduated summa cum laude and Phi Beta Kappa from Princeton. No. 2 in her graduating class. She then studied law at Yale, where she was the editor of the Yale Law Journal.

She has served on the bench 17 years more than any other supreme court nominee in 100 years.

Many racial groups benefited from the struggles of African Americans. But Blacks were not alone in the protests.

[chappie]

Clearly not qualified? How so? Compared to Clarence "There's a pubic hair in my Coke" Thomas? Sotomayor has a better qualifications than all of the Bush appointees combined.

[jerry23]

I am also taken aback when I hear these diatribes. The irrational, hypocritical and inconsistent attacks meant to undermine the relevancy of two consenting adults choosing to Codify a relationship, not built on Shame, only boggles my mind. The Pompous arrogance of the presentations only make me ponder what kind of Wonderland these fools live in. People living in glass house should not throw stones.

[We-Are-The-Ones]

Shame on you for allowing another person to racialize you this way. There are Black gay people.

This guy was not just a "black" person speaking. He was a religious fanatic who happened to be black.

Do not insult Black allies and community members. Out of wedlock birthrate is rampant everywhere. Blacks still suffer from rabid discrimination and denigration. Don't add to that. Don't see a Black person speaking and start with the racism. This person was spouting religious BS and you turned that into racial BS.

Shame.

[Deaninphilly]

Wow, you're so quick to call someone a racist that you missed the point of the post. Let me know how that outlook works out for you in the long run.

[dappleganger]

Well said.

[flyers]

Of course there are single parents that do a great job, just as there are married parents that do a crummy job in raising their kids, as I can point to all my friends growing up and I would get a cross section of good and bad parents.

But in GENERAL, a child that grows up with a mother and father is better off. A mother has certain qualities that mold a child, and father has other qualities that mold a child, that is just the way it is.

I am pro-gay marriage, because I would rather see child go to a same sex family rather then a foster home. But in saying that, the best situation for a child is to grow up with a mother and father.

[AnotherTry]

The best situation is for a child to grow up in a loving, stable home. Period the end.

[JSDKoeln]

science says the contrary. It matters only if they are being raised by stable adults. Read the studies that have been published.

It just makes logical sense to you, but really, it has been disproven by legitimate sources.

[Mysticalsister]

As for Olsen and Boies taking up the Gay Marriage banner today -- ever watch 'lie to me?' David Boies' eyes were sliding around in his head as if he were being held hostage during the press conference, while Olson did all the sweet talking.

I don't want to sound paranoid but what was up with that?

[Amalek]

These are two men working to earn their place in history. They have demonstrated themselves to be men of great character. I do not believe it is possible that they are playing a game. I have had serious differences with Olsen, but he is without a shred of doubt a man of high integrity.

[JSDKoeln]

And looking for that case that will cement his name in history! I say... fine... go for it dude!

[Amalek]

Ted didn't have to clear this with Rushbo?

I am thinking we made a mistake. When he was a possible candidate instead of Scalito the left attacked him. Someone capable of such an intellectual span would have been the ideal conservative judge.

[jackstpaul]

What this means in good terms is that Olson won't be dismissed as a left-wing loony seeking to undermine the family. He's a rightwing idol; a straight-arrow, button-down, cookie-cutter white-guy Republican (except for this) who can't be ignored or marginalized. Esp. from the many people who wanted him appointed AG by Bush. He helped put a Republican Prez into office for 8 years; he’s a right-wing hero for that. A historical figure.

Meaning, an overarching political agenda that people try to attach to gay rights activists can't be attached to Olson, it doesn't fit. He's a right-wing insider. The SC, incl Scalia, will take him very seriously. He’ll come across as a scholar interested in the Constitution, not with a political agenda. Ditto Boies.

His involvement now makes it easier for liberals who haven’t already and the right to come out in public support of gay rights given how conservative he is. They won't seem as radical now.

I’m dumbfounded at this. This is one of the best things that could happen in terms of needing to challenge the laws. People should be dancing in the streets. The publicity these guys will get will be serious and extensive given whom they are. They might not succeed in the SC--maybe they don't get there for years--but the attention and respect will trickle-down. Opposing gunslingers in the most contested Presidential election in history? Legal superstars? This is a movie in the making.

[superstition]

14th Amendment, section 1:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

NO STATE shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In addition to this, the 1st Amendment's prohibition of theocratic law, the fact that marriage is the social recognition of pair-bonds, the fact that homosexuality isn't a disorder, and the fact that homosexuality is one of the two definitively known sexual orientations (bisexuality is debatable) combines to make arguments in favor of heterosexist discrimination irrational.

If you examine the Lawrence dissent, you'll find that the justices didn't appreciate the critical difference between sexual orientation and sexual behavior. In addition, the dissent argued, without a credible logical foundation, that racism is wrong but heterosexism isn't. You'll also find that their rejection of Equal Protection ironically demonstrates that there is no rational basis for denying gay people the right of marriage.

You can find my excerpts of the dissent in the comments here:

http://www.huffingtonpost.com/joan-garry-/time-for-a-double-take-te_b_208188.html

[sealbeach]

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Thats from the Bill of Rights. States refused to radify the Constitution until these rights were were included. No subsequent amendment can override these basic amendments. No where in the US Constitution is the Federal Gov given the power to make the laws regarding marriage.

[superstition]

The judicial branch is just as important as the other two branches. The 14th Amendment clearly says no state can selectively withhold rights from citizens.

[M1]

Wow, what a messy Gay rights movement. It seems the heterosexuals make all the crucial decisions....Mayor Newsom, now these guys. Bless their hearts they are probably doing the right thing. It will be an argument for the History books for sure. At least they will be able to answer the court's questions in oral argument. That guy from AG Brown's office could not even tell the court what an inalienable or fundamental right was or list one. Just agonizing.

[Artemis34]

I have to laugh when the right trots out the "gay agenda" accusation. Like we could ever agree on an agenda! :-)

[Amalek]

I am all for gay rights, but let's take it easy on the "we", ok?

[Amalek]

This issue has to be fought and won by heterosexuals. Prop 8 can be defeated if kind, "normal looking" straight people can make the right wing loons look like Archie Bunker.

Protests in the streets by guys in leather chaps does not help the cause.

[We-Are-The-Ones]

This issue has to be fought and won by all. The LGBT community cannot sit by and wait for religious heteros to see the light. Brown v. Board was argued by an integrated group of lawyers, Black and white.

All protests help. People need to speak anyway they can.

"Normal looking" straight people do an injustice to the diversity of the LGBT community. The LGBT community is not just white men. It is Blacks, women, Asians, Hispanics, Muslims, Christians and a whole lot of other diversity. Let's see all of that.

[We-Are-The-Ones]

There was disagreement within the Black community, as well, regarding whether or not to pursue Brown v. Board of education and any significant civil right achievements Blacks ultimately won.

Disagreement is okay. The task of proceeding through the federal courts under the Constitution is not mutually exclusive from continuing to proceed state by state by state.

And, it is not the hetero attorneys who are bringing the suit, it is the two gay men and two gay women who are the Plaintiffs. Gays are calling the shots.

[BethRA]

"The task of proceeding through the federal courts under the Constitution is not mutually exclusive from continuing to proceed state by state by state."

Of course not. But this case has the potential to do major damage to the fight for equal marriage if it goes to the SCOTUS and they lose.

Who would you rather trust to make decisions about which cases make strategic sense? These guys, who are obviously gifted legal minds, but are relative newcomers to LGBT issues? Or the organizations who've been working on this for over a decade and have succeeded in bringing marriage to 5 states in 5 years?

[Kevins]

I assume an injunction against the California Court decision means the situation reverts to what it was before Prop 8? Meaning Californians would be able to marry until the US Supreme Court decides the issue--perhaps several years from now?

Creating a (potentially) huge class of legal same-sex marriages?

[Deaninphilly]

May or may not depending upon the wording of the injunction.

[richdibo]

Maybe as a gesture of appreciation a gay fashion designer could offer to dress Boies, pro-bono; he needs a lot of help. Talk about someone who dresses in the dark! Just the other day, my hair stylist told me that he no longer wears those cheap dark blue suits that he used to order by the dozen from the LL Beam catalog. What you saw at the press conference was actually a body-length tattoo of that hideous dark blue suit and black tie.

Now here is someone who should definitely come out of the closet.

[Ping]

After reading what women had to go through to get the right to vote in America, I'm convinced that same sex marriage is a not fundamental human right that is protected under the US Constitution.

[jatkins]

History is full of mistakes and wrongs that should never have occurred. History is not something you want to repeat. In short, just because the struggle for women's suffrage was so extraordinary, doesn't mean it should have been.

The Constitution's really pretty clear. At its core is the "noble idea, passed down from generation to generation, that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness".

[juzcuz]

Really? You don't believe that certain inalienable rights such as life, liberty and the pursuit of happiness and LOVE are a basic human right???? If you've ever been oppressed, mistreated, discrimiated agains, abused, left without, misunderstood and couldn't receive 'normal' and 'basic' human rights like millions of gays & lesbians in this country... you'd think this was very important and about time to be dealt with. But you're in your comfort zone, and have the right to life, liberty & your pursuit of happiness and so you stand...gloating in your bloatedness.

[richdibo]

I understanding where you are coming from. There are a lot more writing about what black people had to go through to get the "right" to not be someone's slave. After these readings, would you be convinced that freedom from slavery is not a fundamental human right that is protected under the US Constitution. It appears there is an issue of semantics: what do you mean by "fundamental," in the context of human rights. If a right is fought for over a long period of time, does that mean it is not fundamental?

Try Goggling "fundamental constitutional rights."

[JZ735]

GOOD...These guys are tough...my sister, a Chicago lawyer, knows David well and says he's great...we all know Ted, of course...so it's nice that these two former adversaries can team up and fight the good fight against bigotry in California.

[Artemis34]

I'm glad people want to help. We should welcome help like this.

[Amalek]

The best legal talent that a moral cause can get. If they can't win it, it cannot be won in court. I so look forward to Scalia questioning them at orals.

[BethRA]

The "best legal talent" has already been working on these issues for years.

[livingthe3rdtestament]

I can think of many different groups of people who were (or were not) born with more or less a social abnormality - and they aren't free to live as they were born - i'm just saying... this too is just another natural test of will...pass it - or not.

[echo]

Name 'em, smart@ss.

[livingthe3rdtestament]

sexual predators..for starters ;)