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Joan Garry Headshot

Prop 8. Now what? The US Supreme Court?

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The next chapter in our inexorable march to equality involves the most unlikely of characters. Ted Olson. No, that is not a typo. I don't mean Jimmy Olson (cub reporter for Daily Planet), Mary Kate and Ashley Olson (not sure what to even write here to describe them...)

Allow me to explain. Ted Olson stood before the United States Supreme Court in 2000 and argued that George Bush should be elected President. That is Ted Olson. Ted Olson was on George Bush's short list for Attorney General but Bush knew he wouldn't survive the confirmation hearings. Too conservative. Think about that. In the Bush administration. Too conservative.

That Ted Olson has stepped forward in the first project of the American Foundation for Equal Rights. and will represent two gay couples in a federal challenge to the Proposition 8 ruling handed down by the California Supreme Court yesterday. He will join forces with David Boies. Mr. Boies represented Al Gore in that very same Supreme Court case in 2000. Strange bedfellows indeed.

That Ted Olson said this yesterday:

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."

Take a minute and let that all sink in.

Now let's start firing the question out. I bet you will have some too.

Is this some kind of cruel joke? Are we looking at a wicked right wing conspiracy? Or has this man really traveled the kind of journey on this issue that we know many must travel in order to finally put to rest the real civil rights issue of our time. Is this the right time to move this case forward? Would the US Supreme Court agree to hear the case? I know that there is a long timetable for a case to wind it way to the Supreme Court - maybe the very best case would be two years? Is that too soon? And what about the makeup of the Court? Will more justices step down? Will the political makeup of the court change? Could the group and power dynamics of the court alter? Would that change work to our advantage? Or against us?

I'm just getting started.

So here's how i feel. I am scared to death and I have goosebumps. I am smart enough to know that if a marriage equality case comes before the United States Supreme Court, there is absolutely no margin for error. None whatsoever.

And yet, there are goosebumps. I know that a message is best received when the messenger embodies the message. So let's think about Ted Olson. As a full throttle conservative, he has chosen to stop standing in front of a pulpit when it comes to marriage equality. He has chosen to stand in front of the Constitution. The argument spoken by a man who embodies the message of a changing world could be the perfect combination.

As this unfolds, starting today with a press conference in Los Angeles, there will be vigorous debate within our community. Many folks will be panic-stricken. Many of us will have goosebumps.

I've got both covered.