Wednesday, May 27, 2009

Unlikely Partners - David Boies and Ted Olsen File Prop 8 Challenge

Clarence Darrow & Wm. Jennings Bryan - Scopes Trial - July 20, 1925

The Los Angeles Times is reporting that an unlikely partnership has formed between David Boies and former U.S. Solicitor General Ted Olsen. David Boies, who represented Al Gore in the 2000 election contest, and Ted Olsen, who represented George Bush, are now joining forces to challenge California's Proposition 8 in Federal Court.

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 propostion, allowing immediate reinstatement of marriage rights for same-sex couples.

Here is a pdf file of the press conference announcing the challenge and a pdf file of the complaint filed May 22, 2009.

And here are the plaintiff bios and the bios of Ted Olsen and David Boies.

In the AM LAW Litigation Daily they point out that the LA Times talks about the uphill battle that awaits this challenge:

The Times adds that Boies, of Boies, Schiller & Flexner, and Olson, of Gibson, Dunn & Crutcher, could have a tough battle ahead, given the many conservative judges George W. Bush appointed during his presidency. Even the reliably liberal Ninth Circuit Court of Appeals has "experienced a curtailing of its liberal orientation with Bush's seven appointments," notes the Times. 

In an article by Byron York at the Washington Examiner, Ted Olsen tells York why he is involved in the case and what he would tell conservatives who object to his challenge:

"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 me Tuesday night.  "I thought their cause was just." 

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."

Politico always eager to placate the right is already snidely referring to Olsen as "the left's favorite conservative lawyer." I'm sure that this characterization of Olsen by Politico will be mild in comparison to what other conservative outlets and their friends in the establishment media will be saying. It might get real ugly.

Because this case will probably end up at the Supreme Court it raises a number of questions. Will the Court take the case or will they punt? If they do take the case and rule in favor of Boies and Olsen will this finally put an end to Republicans using gay marriage as a wedge issue in Republican politics or will they just combine their attack of gay marriage with their usual attack against "activist judges"?  Will the current make-up of the Supreme Court doom this case before it even gets there? Will Ken Starr go after Ted Olsen? How will the right wing echo chamber handle having one of their own turning on them? Lots of interesting questions. This is certainly one case that should get a lot of attention.

For further updates on this case you can follow it at the American Foundation for Equal Rights FACEBOOK page.

Update: Internationaljock has a diary up at Daily Kos on this same topic. Check it out.

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