Ted Olson and David Boies in the same courtroom. Last time that happened it was in Bush (Olson) v. Gore (Boies). But now they have teamed up to fight Tuesday's decision by the California Supreme Court on Proposition 8:
A lawsuit filed in federal district court states that Proposition 8 — which eliminated the right of same sex couples to marry in California — creates a class of "second-class citizens" and thereby violates the U.S. Constitution. The suit also calls for an injunction against Proposition 8 until the case is resolved, which would immediately reinstate marriage rights to same sex couples. […]
The plaintiffs are represented by Theodore B. Olson and David Boies. Olson, a former U.S. Solicitor General, represented George W. Bush in 2000’s Bush v. Gore, which decided the presidential election. Boies represented Al Gore in that case. […]
"Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married," Olson said. "These are our neighbors, co-workers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not."
"Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution," Boies said. "Every American has a right to full equality under the law. Same sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second class status."
Their argument is that Proposition 8:
- Violates the Due Process Clause by impinging on fundamental liberties,
- Violates the Equal Protection Clause of the Fourteenth Amendment,
- Singles out gays and lesbians for a disfavored legal status, thereby creating a category of "second-class citizens,"
- Discriminates on the basis of gender, and,
- Discriminates on the basis of sexual orientation.
It seems simple and unarguable, yet Proposition 8 was upheld. The question is, why?
Opponents of the proposition asked the court to overturn the ballot measure on the grounds that banning same-sex marriage changed the tenets of the state Constitution and therefore amounted to a revision, which can be placed on the ballot only by a two-thirds vote of the Legislature. Proposition 8 reached the ballot after a signature drive.
In Tuesday's ruling, the court said Proposition 8 "adds but a single, simple section to the Constitution" and therefore was a constitutional amendment and not a revision.
Of course, the California court only considered Prop 8 under the California Constitution. Olson and Boies are challenging Prop 8 based on federal Constitution grounds And if they win there, then all states must accept gay marriages (since federal law trumps state law).
I'm not optimistic for this to happen. But if any legal powerhouse can get this done, it's Olson-Boies.