RAMPING UP: Federal Challenge to Prop 8 Already Underway

Same-sex marriage may be dividing a nation (or at least conservatives hope it is), but it’s common ground for two big time attorneys who we never expected to see on the same side of the courtroom. LAT: “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. In a project of the American Foundation for Equal Rights, Olson and Boies have united to represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8. Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.”

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  • alejandro


  • FairGamer

    Good for them! Nice to see an initiative that doesn’t involve begging voters for our rights.

  • grimwig

    Awesome. It’s a long shot, but David Boies is good. He’s the best appellate lawyer in the country…or so I’m told by “Recount.” Let’s hope he does better with this than he did with Gore.

  • gary

    While the CA Supreme Court ruling is disappointing, they pretty clearly set us up for a separate is not equal argument. They gave gays all the same rights as married couples with a different name. SCOTUS will be hard pressed to say that separate is equal given previous decisions.

  • rick

    olsen?????????????????? you have got to be kidding. if he was any farther to the right he would fall off the flat earth he lives on.

  • dgz

    this is reaaaally not a good idea. a federal challenge at this point in time will only result in binding precedent against us. good tactic, but bad strategy. baaaad.

  • Chris

    @gary: it’s better than that — it’s the distinction between gay couples who are “married” and gay couples with “domestic partnerships”. That’s a much easier, and more narrow, basis to overturn 8. It’s also clearer and a lot less likely to be granted review by the US Supreme Court as it only effects California, whereas straight vs gay/marriage vs civil unions would affect a number of states.

  • dgz

    @Chris: well, that’s not as bad as i thought, then. but still worried.

  • Nick

    I work for Boies’s firm and I am so proud to hear that he is taking this on. Dude is SHREWD, and would not have ventured down this road if he didn’t feel that success was possible, if not probable. He is a genius before the bench and I doubt anyone in the country could attack this matter with greater zeal or intellect. Very happy here.

  • Sceth

    @gary: It might not reach SCOTUS (which denies protection for orientation). Let’s hope these lawyers are awesome, though.

  • Dick Mills

    With Scalia, Thomas and Roberts on the court, it may not be advisable to bring a federal challenge now. In Lawrence v. Texas, Scalia and Thomas both were on the dissenting side, and now Roberts will most likely be right there with them. But, on a slightly positive note, Lawrence did overturn the earlier Bowers ruling from 1986. It did take 27 years to do it though.

    And, by the time that this case reaches the Supreme Court, we might have a few more states in the plus column to back up our claim.

  • Dick Mills

    My hungover math is a bit flawed.. it took 17 years to revisit and overturn Bowers.

  • DavidinSeattle

    I’m really happy about this. This suit has razor sharp fangs as the 14th ammendment shatters the CSC’s ruling(s) for the 7 car pile-up it is.

    It’s about time someone snapped the jaws shut and swallowed the religious right for immediate digestion for the lying fork-tongued excrement they are. Olsen and Bois are brilliant and would not take this case unless it had great wings.

    Though I’m disappointed the CSC bowed to the RR stench, I am happy it’s over and we can move forward with this suit and other tactics to make us whole and happy in this great nation of ours.

    It isn’t perfect, but it’s still the best.

  • DavidinSeattle

    @Nick Thanks for dropping by. Please do so again if you think we might gleen more insight from your thoughts. It’s always good to have an insider in our midst.

  • emb

    I’m not so sure this is a good idea, that it might be better to take this hit and leverage it into action moving toward 2010. An appeal keeps Prop 8 alive as an issue (when maybe what we should be focussed on is Prop Whatever that fixes the California constitution) and runs a high risk of having the Cal Sup Ct affirmed at the federal level, giving the revision (which is what it is) greater credibility. And the SCOTUS, if it goes that far, is more likely given its current makeup (including Sonya) to defer to the state. So there’s a big risk of “enshrining” Prop 8 even while fighting it.

    On the other hand, if these two clever fellows are as clever as we all want them to be, and manage to get the federal Court of Appeals to issue a stay, we could have yet another window for marriage in California–during which it would probably behoove all the California homos to marry somebody.

    But I still think the best strategic move is forward, not back to 8 again.

  • Rob

    I don’t know whether this is good legal strategy, but I’m amazed that Bush’s Solicitor General is now an ardent gay marriage supporter.

  • Andrew

    I read the press release but haven’t read the complaint yet. As an attorney, I can absolutely say that Olson and Boies are hands-down two of the best constitutional lawyers out there. Will be interesting to get more info as it comes in. Here’s the press release: http://www.equalrightsfoundation.org/images/AFER_Press_Release_5-27.pdf

  • Dick Mills

    @Rob: I may be a bit too cynical some times, so it shouldn’t be shocking that “amazed” wasn’t my first blush. My thought was more “beware of ‘friends’ bearing gifts” sounds a bit “Trojan horse”-ish. The thought that passed through my mind, specifically, was, “Are these guys pushing this NOW to ensure that they bring it up in front of the most gay-pernicious supreme court that has probably ever existed?”

    My initial gasp has tempered a bit since then, but I’m still concerned that this could set us back more than it furthers the cause. But, it doesn’t sidetrack any state efforts, like overturning prop 8 in a referendum. If it backfires in the federal courts, it could set back any federal efforts, but it may be appropriate to be cautiously optimistic.

  • GayGOP

    I am not convinced that a federal challenge would reach the Supreme Court; that being said, I am glad to see two of the smartest lawyers in America teaming up on this. Ted Olson, for all the other reasons the left has to hate him, is a good guy, a smart attorney, and one of the best Supreme Court litigators ever. For David Boies, on the right, the same things still apply.

    As to Justices Roberts and Alito, they may surprise us, as they both were involved with assisting several Lambda Legal challenges, including, IIRC, Lawrence v. Texas, on Roberts’ part.

  • schlukitz

    After the crushing, bitter disappointment of yesterdays’s CSS decision, this gives us something to hope for…and that’s not a bad thing.

    Hope springs eternal!

  • schlukitz

    Correction: CSS should be CSC

  • kevin (not that one)

    One possibility that may be the motivating factor behind Olson’s participation in this challenge is that he wants to force the Supreme Court’s hand in issuing a ruling, one in which he feels is likely to set back the Marriage Equality movement for decades. Since he, along with Scalia, is a founding member of the right-wing Federalist Society, this would make more sense than him having a sudden change of heart regarding same-sex marriage.

  • Thom Freeheart

    Olson has long been a social libertarian. Scalia, too, has said that gay marriage would most likely be made legal through the Full Faith and Credit clause of the Constitution.

  • schlukitz


    “well, the ACLU, Lambda Legal, and the National Center for Lesbian Rights all think this challenge is ill-timed.”

    Of course they do! Anytime, for these people, is ill-timed.
    These people, who purport to be our friends, prey on us for our money in exactly the same manner the RR prey on their flocks for their money.

    And the message from both camps, is exactly the same. The only “right” way to do anything, is “their” way. The sad, ugly truth, both exist for their own celebration and could give a shit less about their members. Take away their cause(s) and they are useless as the proverbial tits on a bull.

    A SCOTUS win for the LGBT community would mean an end to all those LGBT memberships and donations as there would no longer be any reason for their continued existance and thus all those cushy, high-paid jobs (and black-tie fund-raisers dinners) would vanish forever.

    And wouldn’t that be a fucking shame? (sarcasm font on)

  • Wantitall

    Does anybody know where we can read the text of the injunction?

Comments are closed.