California | David Boies | Gay Marriage | Gay Rights | News | Proposition 8 | Ted Olson

Olson and Boies Hold Presser on Federal Challenge to Prop 8;
'Freedom to Marry' and LGBT Groups Issue Warning

As I mentioned yesterday, former U.S. Solicitor General Theodore B. Olson and David Boies, who represented Bush and Gore, respectively, in the contest to the 2000 election, have come together and filed a federal lawsuit against Proposition 8. Earlier today, they (as The American Foundation for Equal Rights) held a press conference.

Olson_boies Watch the press conference,

Said Olson to the Washington Examiner last night: "I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions. I thought their cause was just. 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. 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."

Boies_plaintiffs Watch the press conference, at which they are asked about their motives (because the LGBT community never thought they were pro-gay), about why it is a federal case, about whether or not they have a family member who is gay, and about the timing of the lawsuit, AFTER THE JUMP...

Olson says that he has never been part of an organization that is anti-gay: "I hope that people don't suspect my motives, but wee've had lots of conversations about this. I feel that this is the right position...We fundamentally believe what we are saying. And we're going to win this case."

Said Boies: I've known Ted well for 10 years. [Ted] is a person that is committed in his heart and soul to equality. He is committed in his heart and soul to the Constitution. That is why he is here, and that is why he asked me to participate in this litigation."


Lgbtgroups Today, Freedom to Marry issued a press release with a coalition of LGBT groups warning that a federal lawsuit could set the fight for marriage back. They also released a new publication to that effect (PDF) entitled "Why the ballot box and not the courts should be the next step on marriage in California”: "This publication discourages people from bringing premature lawsuits based on the federal Constitution because, without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

Freedom to Marry Documents...
"Why the ballot box and not the courts should be the next step...” [freedom to marry]
"Make Change, Not Lawsuits" [freedom to marry]

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  1. A federal law suit, well well. Things are moving full steam ahead. From what I understand these guys are challenging the right of a majority to take away a civil right from a minority. Is this the correct understanding? They are NOT arguing for civil marriage rights per se. Did my 6th grade education serve me well?

    Posted by: Sargon Bighorn | May 27, 2009 6:43:12 PM

  2. Frankly, the established lgbt organizations response wreaks a bit of not wanting to lose control of the issue. The fact is that like it or not, the federal issue is sitting out there and someone is going to bring the lawsuit to pursue. I would rather have Boies and Olson being the attorneys making the arguments.

    Posted by: Steve | May 27, 2009 6:49:24 PM

  3. If this is as important to Olson and Boies as they claim it is, WHERE HAVE THEY BEEN UP UNTIL TODAY? Google either of their names and 'civil rights' and you get nada.

    Boies has previously represented George Steinbrenner, Conrad Black, Michael Moore and Napster -- no, he's not in it for the headlines...

    Olson has made contributions to the campaigns of politicians including John McCain, Rick Santorum, John Cornyn, George Allen, Jon Kyl and Michael Steele -- great advocates for LGBT equality all...

    These are fame-seeking lawyers who just want to be in the spotlight arguing 'big' cases. I don't think they truly have our best interests in mind, if all of the LGBT legal advocacy groups that have been carefully setting up their cases for YEARS (e.g. Lambda Legal in Iowa) are AGAINST the idea of a federal suit at the current time.

    Posted by: EchoMark | May 27, 2009 6:49:38 PM

  4. I say go for it. I live in CA and Prop 8 is pure discrimination. It is wrong and should be fought. I am all for reaching out to people also but a hated minority is never going to win a popularity contest. I would rather fight for our equal rights. I support this lawsuit and I wish them the best.

    Posted by: Bob Derby | May 27, 2009 6:53:23 PM

  5. The way I figure this, is that it will take years for their case to make it to the Supreme Court. In the meantime, we can continue the fight and in all likelihood, more states will come on board by that time. Sounds like a plan to me. I mean, how long does Lambda Legal or the ACLU want to protract this? Until they get a lawyer in place that has enough experience for oral arguments? Wait until the three conservative justices retire and/or keel over? I think not. The time is now, which in reality is at least four years from now, at best. What are you afraid of?

    Posted by: Keith | May 27, 2009 7:20:40 PM

  6. I know that sitting here in the UK I cannot grasp all the nuances of the for & against sides over this, but in principle I can only find it commendable.

    At some point someone has to go for the jugular and say that people cannot be legally distinguished by sexual orientation any more than they can skin color or ancestry, even if it accomplishes no more than exposing those at the very top by having them stand up and say THEY do not consider all Americans equal.

    Obviously I don't know if Olson and Boies do have anything particularly repugnant in their pasts, but I certainly wouldn't buy in to spurning them over not being loud advocates/gay themselves; that the advocates & LGBT folk aren't/weren't getting to the top is part of the problem, and is more likely to be rectified by getting major league players like Olson & Boies on the case.

    I think the advocacy groups may be quite correct that "the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage", but there's a world of difference between passing that judgement in quiet anonymity - as their bureacracy swallows a few earnest no-names - and justifying it under the glare of the world's press.

    Posted by: PM | May 27, 2009 7:32:43 PM

  7. I really agree with Keith's post.

    It will be a while before the Supreme Court will hear it. By then CA Prop will have passed restoring marriage rights to LGTB people.

    My only concern is if the timing could spark yet another culture war kicking Dems out of the White House in 2012.

    Posted by: Quint | May 27, 2009 7:34:21 PM

  8. There will never be a perfect time. There will never be an exact alignment of the stars.

    I am not a very trusting person, but Olson seems legit on this. The time is now.

    Posted by: samwise | May 27, 2009 7:52:10 PM

  9. Echomark:

    If they are in it for the fame, then they are just as committed to the cause, because they sure as hell don't want to lose. Of course, I don't read such nefarious intentions into it myself. Both are incredibly bright attorneys.

    Posted by: Jack | May 27, 2009 7:53:43 PM

  10. @Sargon Bighorn: It seems they are, in fact, arguing for marriage rights to be granted by enjoining Prop8 and the CA statutes prohibiting equal marriage.

    @Steve: I think you have hit the nail on the head! If gays are equal, what will the alphabet soup of rights organizations do? Something useful, I hope.

    @Echomark: I think they've been waiting to be asked to argue a strong case like this. You're right; they don't go into a case lightly and they don't want to lose. Neither of these legal powerhouses would have taken this case if they didn't think they had a snowballs chance in hell. Please see Steve's comment and my response in support of it.

    @Echomark: You're right about Olson giving money to some very LGBT unfriendly people. He's not a single issue person nor am I. Those people have views that are in line with what Olson (and I) believe on some issues. I encourage you to start looking for new issues because we WILL have equal marriage rights someday.

    For all the naysayers: Personally, I don't care who argues the case but I can tell you that I am more willing to place bets on Olson/Boies than any of the others. I listened to the oral arguments and read the briefs of the Prop 8 case. They were crap. Those guys didn't have a chance against Starr. Olson/Boies can (and will) hold their own!

    NOW is the time to push from every front. Continue to work on your neighbors and the folks in Fresno to overturn Prop8 at the ballot box. Continue to lobby the legislature to work on fixing this injustice. And, last but not least, support this effort to have a federal ruling on equal marriage rights for gays and lesbians.

    Posted by: jimwatson | May 27, 2009 7:58:03 PM

  11. Minor point - Bush v Gore was in 2000.

    Posted by: stephen | May 27, 2009 8:00:40 PM

  12. I'm sorry I have never agreed with the "Ballot Box Issue" That is not a place where a Groups Civil Rights should be decided so I TOTALLY DISAGREE with the so called groups who have just done so well for us in the past.

    Its time to take to streets.

    Posted by: Jeff | May 27, 2009 8:01:09 PM

  13. Frankly I could care less about whether they have gay family friends or are gay themselves. If these two good ol' boys want to take on SCOTUS to ensure my equality, have at it. And that press release from our lgbt and ally orgs? Personally I find is disgusting that they would encourage us to work this out through the polls. We don't vote on people's civil rights! Why is that so fucking difficult to understand? The fact that Prop 8 even made it to the ballot is offensive and plain wrong. These boys want to argue that very fact. And chances are they'll win.

    Posted by: ZnSD | May 27, 2009 8:18:57 PM

  14. LAWSUITS sound AWESOME! The LGBT Org...have done much about nothing...SO FAR the change has come from the people and not "these LGBT Org" ...SO go for it ....Fight it in the courts and the streets.

    Lawsuits...PS I'm from California & I SUPPORT ALL LAWSUITS.

    Posted by: Bosie | May 27, 2009 8:28:15 PM

  15. are they kidding with their press release?

    "fair-minded but misguided voters"

    They do not ONCE mention that we are battling religious bigots who view marriage as SACRED.
    They also hold onto fairytale that Obama will remove DOMA (which has led to thousands of ignored Massachusetts gay marrieds for years at the federal level).

    We are beyond the "awww aint it cute we have 6 states, now 8 , now 10" phase----
    it all doesn't mean a thing if it's not at the FEDERAL level.

    This is a FEDERAL war for Marriage Equality and the orgs (which clamored for donations via spam emails within minutes of the Prop 8 decision yesterday) do not GET IT.

    Posted by: Martha | May 27, 2009 8:30:41 PM

  16. I agree with Bosie! Where were the LGBT Organizations sending out these letters before the election. Just about all of the LGBT Orgs signing this letter did or said nothing as the protests hit the streets. All of the protests and marches were started at the grass roots level. We need to keep up the fight.

    Rob Thomas said it best today:

    "I believe the fact that an atheist, who doesn't believe in God at all, is allowed to enter into the holy land of marriage while a gay Christian is not, shows that this law is arbitrary. Are we to believe that anyone who doesn't live their life according to the King James Bible isn't protected by the same laws that protect those who do? Using the same argument that I've seen on the 700 Club, that would mean that Jewish, Hindu, or Muslim weddings are also null and void.

    I believe that to deny this right to the gay population is to say to them, "this god is not your god and he doesn't love you." There isn't one person who is against gay marriage that can give me a reason why it shouldn't be legal without bringing God or their religion into it. Still, I'm amazed at the audacity of a small, misdirected group of the ultra-conservative Christian right wing, to spend millions of dollars, in a recession, on advertisements to stop two men or women who love each other from being able to be married, but when you present any opposition to them, they accuse you of attacking their religion. Isn't it funny that the people who are the quickest to take someone's basic rights to happiness are always the loudest to scream when someone attacks their right to do so?"

    Posted by: gibletl | May 27, 2009 8:45:52 PM

  17. The problem is, if they "win", then CA's DP law gets struck down and gays will have nothing in CA. That's unlikely though for several reasons. Prop 8 did not address CA's DP law. The 14th amendment was not the basis for deciding Lawrence v. Texas and the current court is fairly conservative.

    Posted by: anon | May 27, 2009 9:12:10 PM

  18. It's wonderful to see these two lawyers taking such a strong and principled stand, not just against the wiping-away of rights by a majority vote, but specifically for same-sex marriage itself.

    I'm confident that, based on many precedents including Loving, Romer, and Lawrence, they will be able to convince the US Supreme Court of the very obvious 14th Amendment violation that the California Constitution now represents.

    Posted by: Randy | May 27, 2009 9:33:43 PM

  19. Freedom to Marry et al. are hard working orgnizations who have advocated well for our community. They (et al) are several cards in a deck that dealt losing hands in CA and FL. It doesn't mean they failed, it means they failed in CA and FL and mind you, they deserved to fail for political reasons already well covered in these posts from the November ballot question.

    Their fears about a federal court case are indeed old, but nonetheless true enough if you believe that courts cannot change and that new members will not make a difference. It's worth a try. A court case timed with a couple of mass and disruptive protests - with special attention paid to the conservative religious and minority communities who don't like us - might construct the perfect storm.

    Posted by: Caoimhin O'Cathail | May 27, 2009 9:42:28 PM

  20. The LGBT groups that some are arguing have been so ineffective secured the victory in California in the first place. Those same ineffective groups won marriage equality in Iowa, Connecticut and Massachusetts. They also went to the US Supreme Court and overturned criminal sodomy laws in the Lawrence v. Texas case and stopped Colorado's discrimination in the Romer case. My trust is with those that know what they are doing. What five votes does Mr. Olson think he has on the U.S. Supreme Court?

    Posted by: Chris | May 27, 2009 10:08:49 PM

  21. Lots of legally and politically clueless people on this thread whose type of naive thinking led to the Prop 8 fiasco in the first place. The black civil rights movement could have sent civil rights cases to the Supreme Court well before 1954, but they knew that the time and the cases were not ripe. They held back cases that could have gone through the courts sooner because they knew they would have lost before then. Almost all legal experts agree that gay marriage would lose bigtime if it ended up in federal courts. In fact, most scholars think that the liberal 9th Circuit is unlikely to invalidate Prop 8 at this juncture. A ruling against us from the federal courts would be devastating not only to California, but the entire nation. A ruling against us by the Supreme Court would be utterly catastrophic for us for decades to come. Once you have an anti-gay ruling from the US Supreme Court, you have a giant, legal club to bash gays with nationwide. Right now, we know that the majority of the Supreme Court is not with us. In fact, we don't even know if liberals Stevens, Ginsberg, and Breyer would go so far as saw that the 14th Amendment's Equal Protection demands gay marriage. It is reckless to even suggest that these cases enter the federal courts with the current conservative composition in place.

    Posted by: Javier | May 27, 2009 10:17:24 PM

  22. The big momentum for this development was Iowa. Heartland, midwest Iowa - whose court unanimously ruled for equal rights. Do you really think the IA legislature - or popular vote - is for extending equal rights? Now that IA has succeeded through the courts, and CA has been held back through the legislative process (which many of our august organizations above were completely inept) - then the courts are the way to move forward.

    Posted by: brian | May 27, 2009 10:27:12 PM

  23. At this point it's silly to assert that Boies and Olson will move forward inappropriately. These guys are not gunslingers... they are deeply respected collaborative, institutional types.

    Moreover the attorneys involved with LGBT civil rights are excellent. It's unthinkable that Boies and Olson would disregard their strategies.

    I share the frustration expressed here with the LGBT leadership - but we should make a distinction between the LGBT political leadership and the attorneys working for LGBT rights. Our lawyerss are much sharper than our political types.

    Posted by: Bobeau | May 27, 2009 10:43:12 PM

  24. Come on, these guys aren't cynically trying to undermine the gay rights movement. I can understand people fearing that, but in reality, we have two very bright, very canny men with a lot of experience who have a serious shot at winning one for our side.

    Also, if the Supreme Court rules against gays and tries to enshrine discrimination against us for a generation, do you really think we'll take it lying down? I think we have to keep fighting and pushing... things will go our way one day...

    Posted by: Dan | May 27, 2009 10:43:59 PM

  25. This is insane. This is Ted Olson, one of the most evil people alive. He is not doing this out of the kindness of the heart he does not have.

    It is very, very, very bad when the very individual who is responsible for Dumbya stealing the presidency, a right-extremist maniac whose mission is to destroy America, says he's here to help.

    He is obviously only doing this to destroy us the best he can, because that's what Ted Olson does.

    Posted by: ohplease | May 27, 2009 11:12:51 PM

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