All This Is That Jurisprudence and Legal Editor
click to enlarge Messrs. Olson and Boies
I always thought of Theodore Olson as about a shade to the right of Heinrich Himmler or David Duke. I give him a halo for this one. On a side note, as you probably know, his wife, Barbara (a conservative commentator and lawyer), was on the 9/11 'plane that crashed into the Pentagon. And now he has joined up with his old adversary David Boies (you may remember their little case that tossed the entire election George Bush's way--Bush v. Gore) to challenge California's Proposition 8.
It’s pretty cool to see him make the leap—much more satisfying that someone like Arlen Specter, who really did it to save his own skin. Olson can’t be loved by the GOP for this. Maybe it’s the Boalt Hall/Berkeley in him finally coming out?
Olson and Boies's 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.
Numerous gay/lesbian groups and others have said they want to work through the states, and not make a federal case of it! It's too early, they say, and the Supreme Court--where this will inevitably end up (at least the injunction on enforcing Prop. 8 will)--is not ready to hear the case. Boies and Olson think otherwise:
"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." Cocky, yes, but also probably true.
Their lawsuit in U.S. District Court in northern California last week asked for an immediate injunction against Prop. 8 until the federal case is resolved.
"It's not about liberal or conservative, Democrat or Republican. We're here in part to symbolize that. This case is about the equal rights guaranteed to every American under the United States constitution," said former Solicitor General Olson, a well=known and connected Republican. "For too long, gay men and lesbians who seek stable committed, loving relationships within the institution of marriage have been denied that fundamental right," he said.
Olson said he asked Boies, a Democrat, to join his team to present "a united front" in the suit filed on behalf of two same-sex couples who wish to be married but, because of Proposition 8, have been denied licenses.
"Our Constitution guarantees every American the right to be treated equally under the law," Boies said. "There is no right more fundamental than the right to marry the person that you love and to raise a family."
"The courts exist to reverse injustices," he went on. "This is not a question of state law. It's a question of federal Constitutional law."
The California Supreme Court Tuesday upheld Prop. 8, the ballot initiative passed by 52% of voters in November. Prop 8 defines marriage as between a man and a woman. California was the second state after Massachusetts to legalize gay marriage. Since then, Iowa and Connecticut have legalized gay marriage, and legislatures in Vermont and Maine also recently legalized gay marriage.
Hurrah for Theodore Olson. You surprised and gladdened me.
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