Civil Rights Courts LGBTQ Supreme Court

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.


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.

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.


  • A ftting place for Celest’s source to land: “Sheila James Kuehl was appointed to the California Integrated Waste Management Board on December 1, 2008, after serving eight years in the State Senate and six years in the State Assembly.”

    Here you have two votes of the people and affirmation by the California Supreme Court, so you guys, who just KNOW so much more than others, want to take it further with more litigation and with one of the sleaziest attorneys around – David Boies.

    To you, this isn’t about democracy or doing what is right, but it’s about winning at all costs – no matter how low or dishonest you have to go.

    The problem with your arguments is that there is no connection in the application of the law to people based upon race versus people who prefer perverted sex.

  • Why do we keep bothering to make initiatives that cost the state millions to be voted over when we have a perfectly capable and already-elected legislature to make up laws? Our state government seems a little weird.

  • Hi, Woody-Hates-Fags! I also wish we could just dismantle the federal courts entirely, because Americans shouldn’t have the right to litigate constitutional questions. If we just put a little more thought into it we can probably some up with a justification for only dismantling those courts whose decisions we disagree with. Then, let’s work together on a ballot initiative to ban interracial marriage. It’s “democratic,” by our definition.

    Also: calling Sheila Kuehl “trash”: classy!

    You, sir, are an inspiration and an intellectual giant!

  • JN, yeah, just keep calling me names or trying to insult me.

    The left can’t get radical liberal movements past the voters, so they go into shopping judges and courts until they get what they want, and then declare the issue over. I’m still trying to figure out where there is a Constitutional right to privacy that legalized abortion. That sure wouldn’t have gotten past the voters.

    The constant litigation and appeals by the immoral minority is simply an attempt to override the clear will of the people with legislation from the bench by activist judges. It’s not justice.

  • This is headed for the U.S. Supreme Court. There’s only one of those. That’s not “shopping.”

    Ted Olson is “left,” “radical,” and “liberal?”

    How about that ballot initiative to ban interracial marriage?

    You with me or what?

    It would be democratic.

    Stay classy!

  • I have to agree with President Obama and 57% of Americans on this one.

    Majority of Americans Continue to Oppose Gay Marriage

    Obama must be a homophobe.

    – – –

    JN, liberals always shop judges. You don’t have to shop further after you pack the Supreme Court with socialists who hold no moral values.
    Ted Olson is motivated by money or doesn’t care about the issue. (There have even been known gay conservatvies and Republicans, if you can believe that.)
    I’m only against interracial marriage if both of the participants are of the same sex.
    I don’t know what you meant by the next one.
    Legislating from the bench is not democratic.

    – – –

    I’m going to give it a rest. Surely, there are more people out there who can make their arguments by calling me names.

  • I’m still getting a kick out of Woody’s first comment, where he gets hung up on “perverted sex” at the end.

    The types of acts he refers to are legal among consenting adults, and are not at issue here.

    Woody’s really opposed to are stable, loving families being recognized and sanctioned by society.

  • JN, as a correction to your statement that “certain acts” are legal among consenting adults, this Georgia law was upheld by the U.S. Supreme Court.

    Georgia’s Sodomy Law: Georgia code section 16-6-2 provides a 1 to 20 year mandatory sentence for any adults consenting to “any sexual act involving the sex organs of one person and the mouth or anus of another”. The Supreme Court upheld a constitutional challenge to the sodomy law Bowers v. Hardwich (1986), saying that the Constitution did not grant the right to engage in sodomy.

    I’m not sure which unnatural acts that you and your partner practice, but you may want to stay out of Georgia.

    Now, leave me alone, because I’m through here.

  • You got to know when to hold ’em, know when to fold ’em, JN.
    Go have ya a nice sarsaparilla,
    and let poor Woody get some much deserved baby sleep.

  • If Georgia outlawed the conjunction of a person’s head with the anus, Woody wouldn’t be able to legally comment.

  • Old Texas (The Cowman’s Lament)

    I’m going to leave old Texas now
    They’ve got no use for the long-horn cow
    They’ve plowed and fenced my cattle range
    And the people there are all so strange

    I’ll take my horse and I’ll take my rope
    And hit the trail upon a lope
    Say adios to the Alamo
    And turn my head toward Mexico

    The hard, hard ground shall be my bed
    And my saddle seat shall hold my head
    And when my ride on Earth is done
    I’ll take my chances with the Holy One

    I’ll tell Saint Peter that I know
    A cowboy’s soul ain’t white as snow
    Yet in that far-off cattle land
    He sometimes acted like a man

  • Gay Gene
    If science discovers a gay gene, should a parent be able to abort a gay fetus, just because a parent doesn’t want a gay child?

    Should individuals with unwanted homosexual attraction be able to receive psychological treatment and professional care to reverse this affliction and should this treatment be covered by insurance; Or have we as a society decided that professional psychological treatment of homosexuality is illegitimate?

    A Case for Marriage
    The only real legal case for same sex marriage comes under the Americans with Disabilities Act (ADA). Regardless if an individual was born gay or just became gay, it is arguable that being gay is a disability, and because of this disability, a gay person is prevented from marrying the person they love of the same sex.

  • California to U.S.: Back us up for new loans
    State says it needs Washington’s help to stem financial disaster.
    …the state with the worst credit rating in the nation is asking that Washington act as a sort of co-signer on the state’s borrowing, to be backed up with money from the Troubled Asset Relief Program.

  • Pokey: If science discovers a gay gene….

    Just take a swap of DNA from reg. If there is a gay gene, you’ll find it there in hysterical proportions.

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