Ted, David, Sheila…and Prop 8

The decision has been handed down, the protests have begun, but one surprisingly cool thing has come out of the expected but wrong-headed and deeply saddening California Supreme Court decision on Prop 8.

The one-cool-thing is the news that—as the the LA Times reported yesterday late afternoon—stupendously bright, hot shot constitutional lawyer, David Boies—the guy who defended Al Gore in Bush v. Gore—has gotten together with another stupendously bright, hot shot constitutional lawyer pal and, together, these too super litigators will be representing two same sex couples to challenge Prop. 8, not in state court, but federal court.

And Boies’ hot shot pal is—-Ted Olson. Yep. That Ted Olson. The guy who represented Bush in Bush v. Gore—and the very same guy who was George W. Bush’s Solicitor General.

Boies and Olson will hold a press conference in Los Angeles this morning to talk more about the case.

Basically, however, the suit asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry immediately, while the case is being decided.

As the LA Times notes, Prop 8 opponents have thus far been reluctant to challenge the initiative in federal court as the federal bench is considered now to be conservative-leaning due to eight years of Bush administration appointments. Even the traditionally liberal 9th Circuit Court of Appeals is believed to have taken a conservative turn in past years.

Yet Olson and Boies sound undaunted—particularly Olson.

“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,” Olson told Bryon York of the Washington Examiner, Tuesday night. “I thought their cause was just.”

Here’s a bit more from the Examiner.

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. “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,” Olson said. “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.”

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it’s a question that will be decided in Washington, by the Supreme Court. “This is an issue that will get to the Supreme Court, and I think it could well be this case,” he said.

And here’s a bit more from the S.F. Chron, which also had a conversation with Olson about the matter:

He said that he and Boies, who have become close friends in the years since Bush v. Gore, decided to collaborate on the issue.

“We wanted to be a symbol of the fact that this not a conservative or a liberal issue. We want to send a signal that this is an important constitutional issue involving equal rights for all Americans,” Olson said.

[SNIP]

The lawyers said that by relegating same-sex unions to “the separate-but-unequal institution of domestic partnership,” California is violating the 14th Amendment to the U.S. Constitution, which guarantees equal protection for all.

They cite numerous alleged violations of the federal amendment including singling out gays and lesbians for a disfavored legal status and discriminating on the basis of gender and sexual orientation.

“We believe this is the kind of matter where Americans must come together and recognize the rights of all citizens,” Olson said.

Amazing. In the best possible sense of the word.

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PS: Sheila Keuhl has a very smart take on her blog about how and why the California Supremes got it wrong.

Read it. I think she’s got it exactly right—which, by the way, makes Boies and Olson’s endeavor seem that much more well chosen and important.