Challenge to Prop 8 Filed in Federal Court

Olson The L.A Times reports that archconservative Ted Olson has taken up a federal case challenging Prop 8:

"Two prominent attorneys
who argued on opposite sides of Bush vs. Gore, the legal battle over
the 2000 presidential election, announced Tuesday that they will
challenge Proposition 8 in federal court and seek to restore gay
marriage until the case is decided. Former U.S. Solicitor General Theodore B.
Olson and David Boies, who represented then-Vice President Al Gore in
the contested election, have joined forces to tackle the same-sex
marriage issue, which has deeply divided Californians and left 18,000
gay couples married last year in legal isolation."

Ted Olson now better than our President on same-sex marriage.


  1. tropos says

    You are being naive if you think this is a good thing.
    Olson’s involvement in this case makes it suspect. Maybe the far right wants this issue to go upto the Supreme Court, where the chances of a ruling favorable to gay rights are low.
    This will certainly energize the conservative base – in time for 2010 elections – and if SCOTUS rules against gay marriage, the cause will be set back by years, if not decades.

  2. Scott says

    Are they high???? NO good can come of this!!

    Virtually the entire federal court system is dominated by hard-right conservatives. Even liberal judges would have a hard time finding a justification for federal intervention in this state issue. All this does is invite an extremely negative precedent which could stand for DECADES.

    And considering gay marriage in CA could be reinstated just as easily as it was eliminated, it makes more sense to go back to the referendums. It’s not like federal action would result in more timely equality (even in the best case, fantasy scenario in which right-wing judges suddenly decide to become “liberal activist judges.”)

    Do you want history-setting precedent established by the conservative Roberts court?!?!?

    I agree with the Moreno dissent in the CA Supreme Court case, but even the majority wasn’t virulently anti-gay. They almost went out of their way to be pro-gay, even if I think they went astray with their reasoning/conclusion. Californians can have their revenge in a year and a half – maybe these litigants would be wiser to work towards that than proceed with quixotic federal lawsuits.

  3. Robert Thomas Kenmore says

    I think it may be slightly suspect but I also think it is going to depend on how the suit is worded the question being posed to the high court.

    If they are strictly presenting it as a case of equal protection under the law and the fact that there is a minority within a minority which is already considered a suspect class, it could be a good thing (maybe).

    It’s still a little suspect so I think it would be wise to see how the suit is presented and then proceed from there.

  4. Eric says

    This is really fucking stupid.

    In re Marriage Cases was unique because sexual orientation was held to be a suspect classification.

    In today’s decision, the CA Supreme Court affirmed that holding.

    On the federal level, sexual orientation only receives rational basis scrutiny, not the much higher level of scrutiny it receives in California.

    Doing this just spells doom for ALL gay rights because this conservative Court will be more than happy to issue a precedent that declares that sexual orientation should always only receive rational basis scrutiny.

    These guys are out for their own glory and have no interest in the GLBT movement.

  5. John says

    Olsen’s motives are suspect and probably self-serving.

    He just wants to go up against his old mentor Ken Starr in a battle royale of famous lawyers before the Supreme Court. This has nothing to do with same-sex marriage at all. He could be defending a ham sandwich for all he cares.

    This sort of reckless behavior tends to confirm some of the worse stereotypes about lawyers. They treat other people’s lives like a game. They don’t care who they represent as long as the material is challenging. They have their own best interests at heart rather than their client’s.

  6. G. Lopez says

    NO! NO! NO!

    This is going to set back the gay rights movement decades if and when the current supreme court rules against us. People need to contact these lawyers and tell them to drop it, the current makeup of the Supreme court is NOT favorable to gay rights

  7. Chris says

    This could work if the issue is discrimination between two classes of gay couples, those allowed to marry and those not. It’s also so narrow that the SCOTUS would not grant it cert.

  8. Mike says

    This has nothing to do with marriage equality and everything to do with publicity for these lawyers. I also think it would be very destructive for marriage equality to run this through the federal system now. It reminds me a bit of that scene in Poltergeist when Steven is trying to pull Diane out of the closet and Tangina screams: “Steven, not yet!” What a fricken mess.

  9. B says

    Somebody needs to tell President Obama that Ted Olson has stolen his spine.

    As for those 18,000 lucky couples who have been blessed with marriage by the California Supreme Court, enjoy your days of married happiness. I am afrad that a statewide Proposition vote against you could very well be on the horizon.

  10. Randy says

    This is exactly the right course of action. The same logic that held in overturning Colorado’s Amendment 2 (also passed by voter initiative) will hold here.

  11. says

    I don’t know, I’m not willing to freak out over Ted Olson just yet… I seem to recall a gaggle of very gay-supportive attorneys arguing before the CA supreme court recently. I also recall throwing up in my mouth as the majority of these attorneys made lame-ass argument after lame-ass argument, the result being an utterly incomprehensible and ineffective defense of our civil and human rights. Then, I recall fucking Ken Starr showing up as a ringer for the other side, making a cogent, well-reasoned, very persuasive argument for the bigots. His argument was, of course, full of homophobic bullshit, but his utter mastery of the art of debate was undeniable. At that time I thought, “why can’t we hire a ringer like that?” Maybe this guy is our ringer… maybe somebody donated some big-ass funds to hire his services?

    I’m more concerned about the idea of running this to the current SCOTUS rather than the presence of Mr. Olson.

  12. Tom Smith says

    It is time for fairness. As a childless homeowner, most of my taxes from my house go to educate the children of heterosexuals who are responsible for over population, overfishing, global warming, the decline of most other species and all wars (excluding fashion), etc…. and they get tax deductions for their kids too! Time to stop marginalizing gays and have both sides spend their precious time and resources on some of the other critical issues listed above. If you want to go after pervs, stop by your local prison, 95% of them are ,male offenders who went after little girls.

  13. Pender says

    I think this is the right move. The California Supreme Court set up a pass to the federal courts when they created a class of gay people who could stay married and another class who could not get married. Ted Olson and David Boies lend a lot of credibility to the case.

    Unless I’m wrong, we also haven’t seen their appeal/complaint. It’s totally possible that they won’t argue the constitutionality of a general ban on same-sex marriage, but rather a challenge narrowly targeted to Prop 8 as an animus-driven amendment (see Colorado’s anti-gay amendment overturned by the Supremes in 1996 in Romer v. Evans) or as a violation of the equal protection clause in creating two classes of people, one of whom gets gay marriage and the other of whom does not. And if they don’t argue that gay marriage is per se a constitutional right, then the courts can’t rule on that issue.

    So everyone needs to calm down. This is definitely the right move at the right time, and we should be grateful that these two superstars are stepping up.

  14. jimwatson says

    I couldn’t find the text of the suit anywhere, so I downloaded it myself from the court. Sent it to the tips line, so hopefully it will get posted on here. In the mean time, here’s my (non-lawyer) take on it.

    Perry et al v. Schwarzenegger et al claims violations of due process (violates fundamental liberties), equal protection (separate but unequal status-straight vs gay) and 42 USC 1983 (acting “under color of law” to deprive rights of citizens). They ask that Prop8 (and any other CA laws that prohibit marriage equality) be stricken as unconstitutional and, of course, for “reasonable attorneys’ fees.”

  15. Joey B says

    The issue hinges on whether or not they will grant cert. It is unlikely, in this case, as they will state that this is a states-rights issue alone.

  16. Allan says

    Regardless of whether or not one believes there is a right to gay marriage, the Constitution is crystal clear in the full faith and credit clause that all states must honor the records of others. In other words, if someone is lawfully married in Iowa, the Constitution is point-blank about the fact that it must be honored in another state. The defense of marriage act is, therefore, unconstitutional.

    The more intelligent conservative jurists have long known this, which is why they insist that a constitutional amendment is necessary (it isn’t going to happen, but they are absolutely correct in their analysis).

    If they go with that argument, this isn’t even about gay rights per se; it’s about the unconstitutional refusal to recognize the records of one state in another. It’s a purely technical, dry matter. Suspect class, discrimination, blah blah blah. Those are emotional arguments. Olson isn’t an emotional attorney – on facts of the law, he is brilliant at what he does.

    If they go with the equal protection violation, the facts have changed. It is no longer a matter of whether or not gays have a right to get married, it’s the fact that some gays ARE now married, while others are prohibited. That is an entirely new equal protection possibility that, frankly, has far more legal foundation.

  17. FunMe says

    I am not too sure of a FEDERAL case being a good thing. How do the GLBT organization on the forefront of marriage equality feel about this?

    TIMING … don’t know if this is the right time.

    Meanwhile, wasn’t Olsen’s wife killed during 9-11 attacks? Maybe this is his way to ask for pennance after being involved with the criminal bush administration?

  18. jimwatson says

    I’m not convinced that there is not a federal case. Baker has been the guiding case for same sex marriage since 1972, but I think its foundation has been eroded by cases such as Casey, Romer and Lawrence. Much like Bowers was overturned, I think that Baker will be overturned

  19. inocentmi says

    Suspect or not, they don’t need the entire gay community
    to back them. They have a client and a case. Olson and Boies
    have the right to bring the case to the US Supremes, and it
    will be up to the court whether they decide to hear it. I think.

  20. Ben Sanders says

    What better way exists to marginalize and ostracize a group of people than to stamp their existence and relationships with a second-class official seal, such as ‘civil unions’? (Christians love creating this type of Scarlet Letter.) Isn’t this somewhat similar to pink triangle placed on the chests of gays by the Nazis? How does this fit into ‘all men are created equal’? Are the tax dollars taken by gays worth less than the dollars taken by straights?

    These questions leads one to ask if the law really is unbiased, unprejudiced, and blind with respect to creed or religion – particularly ones that hate (or hug and hate – but this is worse because it’s deception and hate) homosexuals, such as Christianity? Or does the law favor certain religions and the beliefs those religions endorse, even to the extent of not guaranteeing equal protections and rights? It’s no wonder why the Supreme Court rules the way it does given that only Christians sit on it. Do we really have a Court theocracy given that the Supreme Court will soon have six devout Catholics serving as judges? Do these justices see the world through an unbiased lens or a religious lens? Are we ruled by common law or biblical law? Why haven’t atheists, agnostics, or Buddhists been appointed to serve on the High Court to guard against religious bias or favoritism?

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