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

[ColumbusMike]

Ted Olson and Ken Starr are best buddies. Starr represented the pro-prop8 side in the case just decided by the California Supreme Court. If that doesn't scare you to death, I don't know what will.

[Mysticalsister]

it smells like a set up to me too. hope i'm wrong.

[JSDKoeln]

Wouldn't a better route be to get Civil Unions passed through congress... with the EXACT same rights as married couples...

Then... gay people can call it whatever the he11 they want. It'll drive the wingnuts crazy when gay couples say my wife, my husband or we are married. Sooner or later, it would become a non issue and the two union types would merge into what would be most logical.... Everyone is considered in a civil marriage. The churches can then use the term "holy marriages"... whatever that means.

I have no faith that the courts will rule in our favor. A law has to be made at the highest level. Equal rights should be the first step... whatever it is called... then it would be much easier to change later. Now that's a gay agenda!

[Montgriz]

It might be, however the Constitution would demand that it be a state matter as it is the states that determine marriage law....the feds can rule it is a violation of a civil right.....not sure they would do this since this court is clearly right wing and influenced by religions and politics like no other in our recent history...remember, they were the court that denied the presidency to the winner of the most votes before the votes were accurately counted in Florida....

[richdibo]

Exactly, the Defense of Marriage Act provided that the federal government will not recognize same-sex marriages for all purposes of the federal code. Each state would have to do its own legislation.

[JSDKoeln]

that's the problem. Since marriage has the benefits of many federal laws.... joint tax returns and immigration for starters. It already IS a federal issue.

[superstition]

"Wouldn't a better route be to get Civil Unions passed through congress... with the EXACT same rights as married couples..."

That's impossible. Didn't you learn from Segregation that "separate but equal" is illogical?

Civil unions cannot be marriage. They aren't marriage.

[JSDKoeln]

I am saying that the all-or-nothing approach will probably not happen in this religious wing-nut culture. Separate but equal may be a logical step... then Gay people can use whatever name they want in their personal lives. sooner or later the two would come together. I think the most important thing is equal rights and fair treatment under the law.

[Artemis34]

It would have to be civil unions for ALL, gay and straight, then it would be not separate and equal.

The civil union would take place in the court house and / or with a justice of the peace. This would be the legal event and recorded in public record.

Then any one can go and have a religious wedding in their church if they want and the church wants and we really don't care. The government doesn't need to record it or anything.

[superstition]

You would also have to retroactively strip marriage from all people who have been married. You would have to rescind their licenses and replace them with "civil union" documents.

There is simply no justification for civil unions. Zero.

Marriage is already a secular institution because our law is secular. The 1st Amendment clearly prevents theocratic law.

Religion is totally optional in marriage already. An atheist can marry an atheist just as easily as a Christian can marry a Jew.

[Amalek]

Why don't we reserve civil unions for heterosexuals and give marriage to gays? Maybe that would result in my wife treating me civil.

[Foreground]

Like the War?

[JSDKoeln]

hysterical! lol

[bbbbmer]

It is at least 'strange' that Ted Olsen, who figured so prominently aligned with Ken Starr, President Clinton's chief impeachment accuser and lead counsel for the Prop 8 cases, would join forces against the measure ruled on yesterday by the California Supreme Court, especially having never EVER engaged in civil rights advocacy before. The backstory on this would be stunning, to be sure... I just hope they aren't attempting to sabotage equal protection for LGBT folks on a national scale by the pretense of taking on the Prop 8 ruling...

[iceage7]

Do they think the repub scotus is going to pass gay marriage. Even on the most less contentious issues they always vote 5/4..Gay marriage is the civil rights issue of our time..There is no way the right leaning court will gor for gay marriage unless these lawyers know something we dont. they are going to sabotage gay marriage..better wait till 2010 for referundum

[Aramarcal]

I think this is a risk worth taking. For California to set a precedent that by ballot initiative rights of a minority can be taken away is not something that should wait. I think they make a good point in that during the civil rights movement, Martin Luther King did not take the state by state strategy. While this worked for Obama's campaign this in my opinion is not the way to go in terms of civil rights. Worst case- I do not see the court outlawing gay marriage, instead I see them turning it back over to the states.

[editorjuno]

I don't trust Olson -- he may be doing this because he *wants* the SCOTUS to establish a negative precedent, perhaps unbeknown to Boies. If not, it's difficult to gauge whether these guys are tremendously savvy or tremendously arrogant to do this given the current ideological balance of the Court -- and the libertarian-authoritarian philosophical bifurcation of many conservative jurists.

[jackstpaul]

Conspiracy theory paranoia. As if others around wouldn't sniff Olson out? Boies wouldn't?

Asif a guy with his career is goign to trash it all in your bizarre sceanrio? For something that I think most agree will become the law some day (or already is a right but is being violated by various government laws)? Just to delay that enactment by some X years?

This is a good thing. Take the tin-foil hat off.

[Amalek]

I have often disagreed with Olsen, but I would never question his character.

[richdibo]

To suggest that he is taking on the case to intentionally sabotage the cause is ridiculous.

Like many, I am in a state of consternation about Olsen; but I let reason prevail. He is representing his clients and is ethically and duty bound to represent their interests. All argument and documents prepared will be in the public record. There will be dozens if not hundreds of friends of the court briefs, where interested parties will be allowed to submit their legal arguments to the court. Lawrence Tribe and hundreds of other constitutional scholars will be involved.

He believes in the constitution, especially the 14th amendment, which he will defend, regardless of his personal views on the matter. Personally, he may not care for same-sex marriage - it irrelevant. However he says he does - and I believe him. We have agreement on this issue. However, besides Bush's dentition policy, I am dumbfounded to think of another one that I share with Mr. Olsen. But then I don't try hard to look.

For a defender of the constitution, the system, rather than the particulars, matters more.
I remember a black ACLU lawyer who defended the Klan on a matter of free speech. He cringed at the speech, but believed that the ACLU had the constitutional right to say it, and fought for that right. Also I remember the Neo-Nazi march in Skokie, IL - a predominately Jewish suburb of Chicago. Jewish ACLU lawyers faced similar dilemma.

[juliewolves]

"The SCOTUS is stacked against gays right now, Four judges who would definitely vote against gay rights, three who would, two ... well, unknown." I think that's the idea - Get the scotus to rule in favor of banning same-sex marriage, and block the will of the individual states.

[We-Are-The-Ones]

It will take years for this case to make its way through the Courts. And, if the Justices follow the law, it matters little what their ideology is.

The S. Ct. cannot "ban" gay marriage based on the Prop. 8 in California.

[echo]

Kennedy did write Lawrence v. Texas, so there's a shot that it could turn out 5-4 in the gays' favor (if Sotomayor votes with the liberal wing as expected), but it still seems pretty risky.

Better to wait until Scalia or Thomas kicks it under a Democratic president.

[AmandaBC]

"Better to wait until Scalia or Thomas kicks it under a Democratic president."

Why am I thinking of the old proverb "E.vil never d.ies"? ;)

[Amalek]

You are reminded of that daily when the former vp's mechanical heart refuses to rust out.

[mergina]

This is just such an odd partnership. What can they possibly be profiting from on this issue?

[stevebond]

Thank God Boies is involved. Ted Olson scares the hell out of me more than his wife Barbara did.

[superstition]

Yeah, we know how well his involvement worked out in 2000.

[bobo5]

Leave the Feds out for now.

[NoCalDrummer]

I don't think this is a good idea on SO many levels.
The SCOTUS is stacked against gays right now, Four judges who would definitely vote against gay rights, three who would, two ... well, unknown.
David Boies doesn't have a particularly stellar reputation (see the recent SCO vs. Novell case on Groklaw), and Olson has given significant monies to candidates that are hardly gay-friendly. Neither seems to have much of a pro-gay background.
Why are they suddenly "pro-gay"? Neither is gay himself. I have to wonder about the motives. Bad move, I think.

[StevenWells]

I, too, question the motives - and the timing. Why the rush to SCOTUS - an all-or-nothing proposition (no pun intended) that could wind up torpedoing marriage equality for the next decade or two - rather than to the Ninth Circuit Court?

Olson: "We think we know what we are doing."

Now, that really scares me.

[JZ735]

I think the fear is unfounded...to have two powerful lawyers arguing in one's favor is never a bad thing, and anyone who understands the law knows that attorneys don't always litigate based on their ideological beliefs...so let's see how this plays out.

[We-Are-The-Ones]

There is no rush to the Supreme Court. One cannot generally proceed directly to the Supreme court unless it is a State v. State issue.

They will file in the District court in that city. If they lose, they will appeal to the 9th Circuit, as a matter of right. If they lose, they will ask the S. Ct. to grant cert.

They are doing this now, or so they say, becuase they have 4 gay Plaintiffs who want this litigated now.

[Aramarcal]

I don't think you have to be gay to realize how scary the precedent set by the Cal. Supreme Court is. I know it's risky but it is the right thing to do. Civil rights should not be decided on a state by state basis. I am optimistic that the court will have no choice but to overturn Prop 8. Especially since the Cal court let all the previous marriages stand.

[tregibbs]

Interesting development. It's time for this - it's the right thing to do. Everyone deserves the same rights.

[Agentprovokatur]

It IS time for equal rights.

I don't trust THIS team to get them from the CURRENT SCOTUS.

Better to wait for a voter referendum in 2010.