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I searched for news about this on DKos and found nothing so thought I'd post. Found it over at Democratic Underground. The two principal attoneys from Bush v Gore have joined forces to overturn Proposition 8 at the Federal Level. It will probably take years for it to wind up in the U.S. Supreme Court but I'm still worried that they're moving too fast. In the meantime, they're asking for a preliminary injunction to prevent Proposition 8's enforcement.

I think we need to get rid of one of the right wing Supremes before Gay Marriage issue goes to the Supreme Court, but I guess there's not much I can do except cross my fingers and hope and pray that these two preeminent attorneys know what they're doing. I think it's fascinating that these two rivals are now joining forces in a righteous cause.

Here's the story form the AP:

LOS ANGELES — Two of the nation's top litigators who opposed each other in the Bush v. Gore election challenge in 2000 have joined forces to seek federal court intervention in California's gay marriage controversy.

Theodore B. Olson and David Boies have filed a U.S. District Court lawsuit on behalf of two gay men and two gay women, arguing that the California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantee of equal protection and due process.

Olson said today that he hopes the case will wind up before the U.S. Supreme Court.

The lawsuit seeks a preliminary injunction against California's Proposition 8 until the case is resolved.

Godspeeds Messrs. Olson and Boies. If anyone can persuade the Supremes, it must be one (or both) of you.

P.S. How about some recs to keep this discussion going (and I could use some mojo!) (Shameless Pimp, I know.  :-)  )

Originally posted to internationaljock on Tue May 26, 2009 at 06:25 PM PDT.

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Comment Preferences

  •  Tips for Justice. (37+ / 0-)

    Hope that they prevail. Maybe some of you lawyer types can educate me about how the process might unfold and progress.

    I don't mind straight people as long as they act gay in public.

    by internationaljock on Tue May 26, 2009 at 06:27:25 PM PDT

    •  I'm guessing cert denied. (1+ / 0-)
      Recommended by:
      vcmvo2

      This is an issue involving a state constitution decided by the state supreme court.  It's not an issue for Federal courts because the US constitution doesn't recognize sexual orientation as a protected class and the law doesn't involve a vital national interest like Bush v. Gore did.

      Snarka Snarka Snarka!

      by Hunter Huxley on Tue May 26, 2009 at 06:36:13 PM PDT

      [ Parent ]

      •  Are these guys the best there is? (0+ / 0-)

        Why would it be denied?

        I don't mind straight people as long as they act gay in public.

        by internationaljock on Tue May 26, 2009 at 06:38:11 PM PDT

        [ Parent ]

        •  It's a state issue. (0+ / 0-)

          The federal courts have no business interpretting a state constitution.

          Snarka Snarka Snarka!

          by Hunter Huxley on Tue May 26, 2009 at 06:41:28 PM PDT

          [ Parent ]

          •  Except under the 14th Amendment (6+ / 0-)

            that applies to state action.  Olson and Boies ultimately may not prevail, but your suggestion that the federal Bill of Rights has no application to state law is quite incorrect.

            The debate today is not whether a federal claim can be brought, but instead what is the preferred timing.

            Rome is burning ... put down the fiddle.

            by ancblu on Tue May 26, 2009 at 06:54:27 PM PDT

            [ Parent ]

            •  Eventually, something like this will pass (1+ / 0-)
              Recommended by:
              ancblu

              and homosexuality will probably receive intermediate scrutiny under the 14th amendment along with gender.  I don't think that this Court is ready to go there yet, but I'm happy and surprised to see Ted Olsen being part of this effort.

              They tortured people to get false confessions to fraudulently justify invasion of Iraq.

              by Seneca Doane on Wed May 27, 2009 at 09:20:52 AM PDT

              [ Parent ]

              •  those who fail to recognize that every legal (0+ / 0-)

                judgment is laden with value preferences would do well to consider why sexual orientation should not be entitled to strict scrutiny, particularly given the invidious  discrimination that the classification has received historically and the fundamental nature of the rights in question. The principles of Loving v. Virginia are long-since settled, but yet we have a very specific class of citizens who remain firmly outside of the protective ambit of equal protection properly recognized by that case.

                I do agree that the long arc of history will ultimately bend toward full recognition of same-sex marital equality, though it utterly shocks me that this fundamental civil rights issue remains as unresolved and contentious as it is today.

                Rome is burning ... put down the fiddle.

                by ancblu on Wed May 27, 2009 at 11:09:25 AM PDT

                [ Parent ]

                •  Well, that wouldn't *bother* me, but (1+ / 0-)
                  Recommended by:
                  ancblu

                  it seems like a natural outgrowth of gender discrimination, which receives intermediate scrutiny (which is still plenty powerful.)  In fact, analytically, I could argue that it is gender discrimination in choice of sexual/marriage partner.

                  They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                  by Seneca Doane on Wed May 27, 2009 at 01:00:51 PM PDT

                  [ Parent ]

                  •  true ... but I always felt (1+ / 0-)
                    Recommended by:
                    Seneca Doane

                    that gender discrimination merited strict scrutiny as well.  Perhaps I'm just overly distrusting of most governmental justifications as a general matter and particularly when it comes to disparate treatment.

                    By the way ... I really appreciated your excellent diary interpretating Strauss.  You added immeasurably to the discussion here on teh dkos. As always, you provide a clear and perceptive point of view that I respect greatly. Thanks very much for elevating the quality around.

                    Rome is burning ... put down the fiddle.

                    by ancblu on Wed May 27, 2009 at 07:12:32 PM PDT

                    [ Parent ]

                    •  It's the bathroom thing (1+ / 0-)
                      Recommended by:
                      ancblu

                      Seriously, in my opinion that's the main driver.  People want bathroom privacy by gender.  They are afraid that that distinction would not pass muster under strict scrutiny.  (Well, there may be a few other drivers as well.)

                      Thanks for your kind words.  If mine was too hopeful a gloss -- and I'll still defend it -- I'm glad if it at least softened some of the numbing despair that people felt.

                      They tortured people to get false confessions to fraudulently justify invasion of Iraq.

                      by Seneca Doane on Thu May 28, 2009 at 12:01:00 AM PDT

                      [ Parent ]

          •  Adding to the chorus (2+ / 0-)
            Recommended by:
            bebacker, second gen

            Equal protection under 14th Amendment would apply like it would if this were an interracial couple. Now, will theys ee it that way? Who knows, but to see deny cert- why would they do that?

            •  What is cert? (0+ / 0-)

              Or should I just buy "Lawyering for Dummies"?

              I don't mind straight people as long as they act gay in public.

              by internationaljock on Tue May 26, 2009 at 07:20:55 PM PDT

              [ Parent ]

              •  here's a definition (3+ / 0-)
                Recommended by:
                CJB, bebacker, ancblu

                http://en.wikipedia.org/...

                Nothing wrong with not knowing.

                •  OIC (1+ / 0-)
                  Recommended by:
                  homogenius

                  "the writ that the Supreme Court of the United States issues to a lower court to review the lower court's judgment for legal error and review where no appeal is available as a matter of right."

                  (for those who don't want to click away from DKos)

                  I don't mind straight people as long as they act gay in public.

                  by internationaljock on Tue May 26, 2009 at 07:28:39 PM PDT

                  [ Parent ]

                  •  You didn't take polisci? (2+ / 0-)
                    Recommended by:
                    bruh1, internationaljock

                    You didn't have to watch a black & white film on Gideon's Trumpet?

                    LOL

                    Seriously, killer diary!  I made a couple of comments, earlier, but wasn't up to it.

                    But my concern is Olson. He was Bush's Solicitor General. How do we know this isn't a trojan horse? Lambda Legal et al have avoided invoking the US constitution out of fear (partly) of a situation like Dale v. Boy Scouts (and yes, Bush v. Gore) where this SCOTUS would have the chance to contort the law to their purpose.

                    I want to hear what our folks have to say about this. Ted Olson is only slightly less odious than Ken Starr.

                    "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

                    by homogenius on Tue May 26, 2009 at 08:14:44 PM PDT

                    [ Parent ]

                    •  I dont think he's trying to trick anyone (1+ / 0-)
                      Recommended by:
                      homogenius

                      not every conservative agrees with the right over marriage equality. For what its worth, Americablog.com is discussing the Olson part and his odiousness, but say s they are glad he's on the case. At the very least we do not have to worry about zealous representation.

                      •  We'll see. (0+ / 0-)

                        John loves to cozy up to his former GOP friends. He thought Katherine Harris was charming and sweet when he met her.

                        "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

                        by homogenius on Wed May 27, 2009 at 05:09:26 AM PDT

                        [ Parent ]

            •  It's in District Ct. Certiorari is years away... (0+ / 0-)

              Coming Soon -- to an Internet connection near you: Armisticeproject.org

              by FischFry on Tue May 26, 2009 at 07:46:23 PM PDT

              [ Parent ]

          •  And they are not being asked to do that (2+ / 0-)
            Recommended by:
            internationaljock, Seneca Doane

            The suit poses a federal question as to whether the CA provision denies United States citizens their federally-protected right to equal protection.

            Coming Soon -- to an Internet connection near you: Armisticeproject.org

            by FischFry on Tue May 26, 2009 at 07:44:14 PM PDT

            [ Parent ]

      •  Risky...the betting would be on cert denied (1+ / 0-)
        Recommended by:
        homogenius

        of course, partly because (so far) the federal issues haven't percolated up through the circuits & there's no inter-circuit conflict.  However, by the time the case reaches the SCt, there might be conflicting lower-court rulings on whether a federal equal-protection or substantive due process case for marriage equality can be built on Lawrence v Texas and Romer v Evans. It would be a major extension of those cases, but there's an argument.

        They can state a federal claim, but with time on our side, why push the argument up now?

      •  Yes, but this is a new challenge (3+ / 0-)
        Recommended by:
        bruh1, poligirl, h bridges

        It is not an appeal of the CA supreme court's decision today.

        What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

        by Alec82 on Tue May 26, 2009 at 06:48:31 PM PDT

        [ Parent ]

        •  oh. nt (0+ / 0-)

          Snarka Snarka Snarka!

          by Hunter Huxley on Tue May 26, 2009 at 06:52:20 PM PDT

          [ Parent ]

          •  But AFAIK, it's not from our folks. (0+ / 0-)

            I'm seriously concerned about a filing that doesn't involve ANY of our LGBT lawyers/orgs.

            What's their agenda?  All of a sudden, George W. Bush's Solicitor General is concerned about equal protection for gays?  

            Huh?

            What's wrong with this here pitcher?

            "Troll-be-gone...apply directly to the asshole. Troll-be-gone...apply directly to the asshole."

            by homogenius on Tue May 26, 2009 at 08:18:39 PM PDT

            [ Parent ]

            •  I'm curious what Lambda has to say (0+ / 0-)

              Their strategy (and the strategy of other organizations) has been very cautious and far sighted so far (CA being the exception).  

              That being said, this will be the second case challenging CA's marriage ban to go to the federal courts.  The prior couple didn't have institutional approval either.  

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 08:40:17 PM PDT

              [ Parent ]

      •  but it could violate the Constitution now... (2+ / 0-)
        Recommended by:
        internationaljock, h bridges

        in terms of equal protection...

        these two attorneys know their stuff - it's not like they're "ambulance chasin'" young guns trying to make a name for themselves... they already have their places in history...

        --poligirl  :D

        "Justice often looks backward. That is what justice is largely about. We look back at actions and decide whether they were right or wrong, just or unjust..."

        by poligirl on Tue May 26, 2009 at 06:56:47 PM PDT

        [ Parent ]

  •  Can you include a link? (3+ / 0-)
    Recommended by:
    leonard145b, poligirl, ardyess

    Here is one from the LA times:

    http://latimesblogs.latimes.com/...

    What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

    by Alec82 on Tue May 26, 2009 at 06:33:17 PM PDT

  •  Challenge it in federal court (1+ / 0-)
    Recommended by:
    leonard145b

    on what grounds? It's a state constitutional amendment. I would love for it to be overturned federally but I don't see how.

    "ENOUGH!" - President Barack Hussein Obama

    by indiemcemopants on Tue May 26, 2009 at 06:33:35 PM PDT

    •  On the theory that it violates the 14th amendment (11+ / 0-)

      To the federal constitution, presumably.

      What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

      by Alec82 on Tue May 26, 2009 at 06:34:47 PM PDT

      [ Parent ]

      •  But the decision (0+ / 0-)

        said that there's no guarantee of the word marriage even with equal protection.

        "ENOUGH!" - President Barack Hussein Obama

        by indiemcemopants on Tue May 26, 2009 at 06:36:30 PM PDT

        [ Parent ]

        •  Wrong equal protection amendment. (3+ / 0-)
          Recommended by:
          JR, bebacker, poligirl

          The state court interpretted the state constitution's equal protection clause.  Alec82 is speculating that the U.S. Supreme Court would overturn the case by interpretting the FEDERAL equal protection clause.  The two clauses can protect completely different things.

          Snarka Snarka Snarka!

          by Hunter Huxley on Tue May 26, 2009 at 06:39:27 PM PDT

          [ Parent ]

          •  I didn't say anything about the prospects of the (2+ / 0-)
            Recommended by:
            poligirl, ancblu

            ...case, just what their legal theory is.  

            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

            by Alec82 on Tue May 26, 2009 at 06:41:26 PM PDT

            [ Parent ]

            •  Right, I was just saying which clause they would (1+ / 0-)
              Recommended by:
              poligirl

              use if they were going to overturn it.  They wouldn't reinterpret the state constitution, they would overturn it by the 14th Amendment.

              At least that was how I interpretted your comment.

              The point being, that the California Court's interpretation of the California Constitution would have no bearing on the Supreme Court's interpretation of the 14th Amendment.

              Snarka Snarka Snarka!

              by Hunter Huxley on Tue May 26, 2009 at 06:43:42 PM PDT

              [ Parent ]

          •  Yeah but who in the (3+ / 0-)
            Recommended by:
            tiponeill, homogenius, Alec82

            court is going to agree that the federal equal protection amendment protects gay marriage but not the state one? Everyone sees marriage as a states' rights issue. The DOMA exists and hasn't been overturned and the federal marriage amendment got rejected by the legislature, not by the people or the courts.

            I don't think that Scalia or Thomas or Alito or Roberts are going to argue for gay marriage. Who does that leave?

            If cert is even granted.

            "ENOUGH!" - President Barack Hussein Obama

            by indiemcemopants on Tue May 26, 2009 at 06:45:04 PM PDT

            [ Parent ]

            •  Well, don't get ahead of yourself (4+ / 0-)
              Recommended by:
              bruh1, indiemcemopants, h bridges, ancblu

              They still have to make it past the federal district court and the 9th circuit.  But the abstention issue is out of the way because of today's ruling, presumably the plaintiffs have standing, and it can be tackled on the merits (or lack thereof).  

              Technically, we don't know what Roberts or Alito think (although I can guess), but most people believe it would hinge on Kennedy.  

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 06:46:55 PM PDT

              [ Parent ]

          •  Not "Speculation" At All: (2+ / 0-)
            Recommended by:
            poligirl, Alec82

            Theodore B. Olson and David Boies, long identified as opposing forces for conservative and liberal groups, filed suit in federal court on behalf of two gay men and two gay women, arguing that a California constitutional amendment eliminating the right of gay couples to marry violates the U.S. constitutional guarantees of equal protection and due process.

            Source: SFGate

        •  Under the CA state constitution (0+ / 0-)

          The theory is that the 14th amendment requires everything, including the term marriage, at least one assumes.

          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

          by Alec82 on Tue May 26, 2009 at 06:44:16 PM PDT

          [ Parent ]

          •  The decision specifically states (0+ / 0-)

            that voters amended equal protection in California to exclude marriage. It was upheld because the voters passed it in their initiative system. I doubt the federal SCOTUS is going to rectify that change by ruling that the federal equal protection is more inclusive and should apply to California. That will take away their "right to initiative" voting stuff.

            "ENOUGH!" - President Barack Hussein Obama

            by indiemcemopants on Tue May 26, 2009 at 06:48:43 PM PDT

            [ Parent ]

            •  The "right to initiative" is.... (2+ / 0-)
              Recommended by:
              bruh1, h bridges

              ...limited by the 14th amendment.  We're reading tea leaves when it comes to predicting what the court will do (and even what the 9th circuit will do; they punted a couple of years ago).  

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 06:53:05 PM PDT

              [ Parent ]

              •  there's also the extra new wrinkle (1+ / 0-)
                Recommended by:
                Alec82

                of the CA court having some marriages which are now valid. Not sure how that fits into the fact pattern at the federal level.

                •  Rational basis would I guess be the reliance... (0+ / 0-)

                  ...interest of the married couples.  I think the existence of the domestic partnership benefits remains important regardless of the scrutiny level, though.  

                  What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                  by Alec82 on Tue May 26, 2009 at 07:26:44 PM PDT

                  [ Parent ]

      •  Not a protected class. (0+ / 0-)

        State constitutions' equal rights amendments can be, and often are, more broad than the federal equal rights amendment.

        Snarka Snarka Snarka!

        by Hunter Huxley on Tue May 26, 2009 at 06:37:37 PM PDT

        [ Parent ]

        •  9th Circuit applied intermediate scrutiny last... (2+ / 0-)
          Recommended by:
          burrow owl, ancblu

          ...summer in a challenge to the military's DADT policy.  Circuit split.  Open question, btw, as the Supreme Court has never addressed whether or not sexual orientation is suspect; when discriminatory statutes were invalidated they were invalidated on rational basis (Lawrence and Romer).

          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

          by Alec82 on Tue May 26, 2009 at 06:38:48 PM PDT

          [ Parent ]

          •  well not really rational basis (1+ / 0-)
            Recommended by:
            Alec82

            they called it ratinal basis, but it was not really rational basis. I agree. However, I suspect we will once again see people saying "well but it's not a protected class" but not understand that it's not a question of settled law, but instead the question being determined.

            •  They didn't call it rational basis... (0+ / 0-)

              ...but they didn't call it intermediate scrutiny, either.  It was an "as applied" test for a liberty interest, yes?

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 07:36:25 PM PDT

              [ Parent ]

              •  You are asking me to remember 10 years ago (1+ / 0-)
                Recommended by:
                Alec82

                As I remember it was basically what my professor called rational basis with teeth. Meaning it really does have to be rational rather than any excuse being made up and the court going okay we believe you . The key point is that it shifted burden to the state to prove rationality, but required less proof than intermediate. Thus the key element of value is that it would not be enough to say "we ll we are against it because the state has an interest in procreation." Because rationally speaking, in  areal sense this would be hard to argue given the fact the state marries barren couples and does not reqire oaths to produce childrens. Under normal rational basis they would stop at the state saying- oh , we need it because the tooth fairy says so.

        •  And yes, btw (0+ / 0-)

          I realize that state constitutions can more fully protect individual rights.

          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

          by Alec82 on Tue May 26, 2009 at 06:43:35 PM PDT

          [ Parent ]

        •  You realize you're prejudging that decision? (1+ / 0-)
          Recommended by:
          internationaljock

          If homosexuals are held to be not a protected class, then it's virtually impossible to find a 14th Amend violation. However, you're prejudging the outcome. Obviously, the argument will be that homosexuals should be a protected class -- that sexual orientation is a suspect classification.

          Coming Soon -- to an Internet connection near you: Armisticeproject.org

          by FischFry on Tue May 26, 2009 at 07:49:08 PM PDT

          [ Parent ]

      •  Exactly (3+ / 0-)
        Recommended by:
        valadon, poligirl, Alec82

        While marriage is a state issue since it is not mentioned in the Federal Constitution, it is also true that all state constitutions must uphold the rights and privileges that are guaranteed in the Federal document.

        In so many cases, the 14th Amendment often comes riding to the rescue.  It is an amendment as vital as the First Amendment.  

        To the GOP and their ilk... YOU LOST!!! So, STFU.

        by oxfdblue on Tue May 26, 2009 at 06:38:13 PM PDT

        [ Parent ]

      •  Exactly. (1+ / 0-)
        Recommended by:
        Alec82

        Look at the Loving v. Virginia case.  Every time you see reference to interracial marriage, strike out, add same-sex marriage.  Same constitutional theory.

        •  If we get strict scrutiny, at least (0+ / 0-)

          Foregone conclusion.  Even intermediate scrutiny would probably kill most of the marriage amendments.  But this is a gamble.

          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

          by Alec82 on Tue May 26, 2009 at 07:21:20 PM PDT

          [ Parent ]

          •  how would any of them survive intermediate (1+ / 0-)
            Recommended by:
            Alec82

            I assumed the minute you shift the burden they all fall. The right has not exactly come up with even strong reasons why the state must discriminate in this manner. They are all based on disproven research and religion when you dig deeper than the sound bites.

            •  I think an argument could possibly be made.... (0+ / 0-)

              ...that a ban on marriage only, but providing for an alternative arrangement, could pass intermediate scrutiny.  I propose that only on the basis that some gender classifications have survived, on a theory that reads quite a bit like "separate but equal" in some respects.

              I don't know, honestly.

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 07:38:34 PM PDT

              [ Parent ]

              •  this reminds me of those discussion (0+ / 0-)

                in which peo try to say that one is not a bigot if they are opposed to gays being married. I ask them to provide me with some basis that's logical and factually driven for why they would be opposed to marriage equality. Normaly, I get the singing fo the crickets. It is th same when someone ask me- well is obma a bigot, and they get angr when I sayo nthis issue he is in the larger context of history a bigot because one of the core principle of bigotry is separate treatment for no logical reason outside of prejudice against the class.

                •  Well the test is substantially related... (0+ / 0-)

                  ...to an important government interest, right? And there are some gender classifications that have survived the test.  I don't think a marriage ban would survive it, but I also think the three tiers are bullshit and I'm cynical enough to believe the courts make it up as they go along.  

                  What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                  by Alec82 on Tue May 26, 2009 at 08:23:25 PM PDT

                  [ Parent ]

                  •  of that we are 100 percent in agreement (1+ / 0-)
                    Recommended by:
                    Alec82

                    I thought the same thing about today's ruling. It was politics. I think much of what the courts do are politics.  I think too many people do not understand at this level when you get beyond the easy plug and chug of clear precendent or the trial level, it becomes idealogy, politics and what do you want the policy to be in practical terms. The greatest trick the conservatives play on liberals is the whol idea of being "qualified." I challeng someone to tell me what the hell that means because to me it seems to be mean justices who will rule the way conservatives want even if its judicial 'activisim."  Scalia does it. Roberts does it. All of it do it. The lie is to do it while pretending one is not doing it. They were attacking Obama's nominee today for being honest about saying yes, she's influenced by her background. Like Scalia isn't? Please, he's nothing but politcs. Check out his analysis in cases like gun control and the taking clause. If I am remembering my cases right, he's making shit up as he goes. I mean - with the Kelo decision I wanted the Court to limit the taking clause, but I knew it was clearly politics to believe that. Not precedent or the law.

    •  Here You Go, On These Grounds: (7+ / 0-)

      "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 lawsuit was filed in U.S. District Court in San Francisco on Friday, before the California Supreme Court issued a ruling Tuesday upholding the state's voter-approved Proposition 8, which banned gay marriage.

      The suit argues that Proposition 8 creates a category of "second-class citizens" in violation of the U.S. Constitution. It seeks a preliminary injunction against imposition of the amendment until the lawsuit is resolved, immediately reinstating marriage rights to same-sex couples.  http://www.sfgate.com/...

       Sounds like really, really good grounds for a Federal Law Suit, No?

      •  I would think so, but what do I know? (1+ / 0-)
        Recommended by:
        leonard145b

        But if these two guys think so then presumably they think that they can win it.

        I don't mind straight people as long as they act gay in public.

        by internationaljock on Tue May 26, 2009 at 06:48:06 PM PDT

        [ Parent ]

      •  Also from Balkin- pg 92 of the slip opinion (1+ / 0-)
        Recommended by:
        leonard145b

        "Proposition 8 does not eliminate the substantial substantive protections afforded to same-sex couples by the state constitutional rights of privacy and due process as interpreted in the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757. Rather, same-sex couples continue to enjoy the same substantive core benefits afforded by those state constitutional rights as those enjoyed by opposite-sex couples — including the constitutional right to enter into an officially recognized and protected family relationship with the person of one’s choice and to raise children in that family if the couple so chooses — with the sole, albeit significant, exception that the designation of "marriage" is, by virtue of the new state constitutional provision, now reserved for opposite-sex couples. Similarly, Proposition 8 does not by any means "repeal" or "strip" gay individuals or same-sex couples of the very significant substantive protections afforded by the state equal protection clause either with regard to the fundamental rights of privacy and due process or in any other area, again with the sole exception of access to the designation of "marriage" to describe their relationship. Thus, except with respect to the designation of "marriage," any measure that treats individuals or couples differently on the basis of their sexual orientation continues to be constitutionally "suspect" under the state equal protection clause and may be upheld only if the measure satisfies the very stringent strict-scrutiny standard of review that also applies to measures that discriminate on the basis of race, gender, or religion. Because Proposition 8 has only this limited effect on the fundamental rights of privacy and due process and the guarantee of equal protection of the laws under the state Constitution as interpreted by the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, there is no need for us to consider whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse (cf. Romer v. Evans (1996) 517 U.S. 620), would constitute a constitutional revision under the provisions of the California Constitution. A narrowly drawn exception to a generally applicable constitutional principle does not amount to a constitutional revision within the meaning of article XVIII of the California Constitution."

        Language is wine upon the lips. -Virginia Woolf

        by valadon on Tue May 26, 2009 at 06:49:05 PM PDT

        [ Parent ]

      •  I hope that argument works. (1+ / 0-)
        Recommended by:
        leonard145b

        Surprisingly, to me because I'm not a lawyer, I actually touched on that here.

        "ENOUGH!" - President Barack Hussein Obama

        by indiemcemopants on Tue May 26, 2009 at 06:51:48 PM PDT

        [ Parent ]

  •  Interesting indeed. (0+ / 0-)

    Maybe some of these true conservatives are dedicated to the cause, and not giving in to the wingnuttery.  They seem to be the only ones making sense these days, even though I don't agree with them.  This is good news.

  •  I posted this in the diary that was deleted: (2+ / 0-)
    Recommended by:
    KayCeSF, justmy2

    Probably a good idea...

    ...to keep your hand on your wallet.

    Bush Solicitor General Ted Olsen has joined us in the fight against Prop 8

    The Rule of Law: The Law works against GLBT people.

    by rserven on Tue May 26, 2009 at 06:39:27 PM PDT

    •  Not sure what you are getting at/referring to? (0+ / 0-)

      I don't mind straight people as long as they act gay in public.

      by internationaljock on Tue May 26, 2009 at 06:51:39 PM PDT

      [ Parent ]

      •  You trust Ted Olsen? (0+ / 0-)

        The Rule of Law: The Law works against GLBT people.

        by rserven on Tue May 26, 2009 at 07:00:13 PM PDT

        [ Parent ]

        •  If David Boies does, (1+ / 0-)
          Recommended by:
          samddobermann

          then I do.

          I don't mind straight people as long as they act gay in public.

          by internationaljock on Tue May 26, 2009 at 07:02:30 PM PDT

          [ Parent ]

          •  Boies is not to be trusted, either (1+ / 0-)
            Recommended by:
            celdd

            This case looks to me like a clusterfuck waiting to happen.  Ted Olsen?  He served under Ed friggin' Meese, if I remember correctly.

            I think it's more likely than not that this is a truly evil attempt, by conservatives, to get the Supreme Court to prevent the application of equal protection doctrine to gay and lesbian people.

            Somebody needs to show me some bona fides on this issue for both Olsen and Boies.  What have they ever done to establish that they're the ones who will make the best arguments possible on behalf of justice and equality.  I've been searching on Google, and I see nothing reassuring, plenty alarming on both of them.

        •  He has stated that he opposes marriage bans (0+ / 0-)

          Some conservatives do, particularly in the legal community.  

          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

          by Alec82 on Tue May 26, 2009 at 07:03:09 PM PDT

          [ Parent ]

          •  Please produce the links (0+ / 0-)

            This is too important of a subject for hearsay evidence.

            •  For Olson? (3+ / 0-)

              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."

              http://www.washingtonexaminer.com/...

              http://www.advocate.com/...

              When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

              As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court "make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated."

              What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

              by Alec82 on Tue May 26, 2009 at 07:25:13 PM PDT

              [ Parent ]

              •  Thanks for that! (1+ / 0-)
                Recommended by:
                Alec82

                Bravissimo!

                I don't mind straight people as long as they act gay in public.

                by internationaljock on Tue May 26, 2009 at 07:30:22 PM PDT

                [ Parent ]

              •  No, these establish nothing (0+ / 0-)

                This is what Olson is saying now, in the context of his sudden desire to bring this case to the Supreme Court.  What is needed is historical evidence that Olson genuinely supports same-sex marriage and believes marriage (including same-sex marriage) is a fundamental, inalienable right.

                •  Why do you need this evidence? (1+ / 0-)
                  Recommended by:
                  samddobermann

                  What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                  by Alec82 on Tue May 26, 2009 at 07:36:59 PM PDT

                  [ Parent ]

                  •  I think he might be wearing... (1+ / 0-)
                    Recommended by:
                    Alec82

                    a tinfoil hat.

                    I don't mind straight people as long as they act gay in public.

                    by internationaljock on Tue May 26, 2009 at 07:38:06 PM PDT

                    [ Parent ]

                    •  I think you're right (0+ / 0-)

                      But Olson wouldn't have taken the case if he didn't believe it.  At least, I don't think he would have.  

                      What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                      by Alec82 on Tue May 26, 2009 at 07:40:41 PM PDT

                      [ Parent ]

                      •  From Americablog: (3+ / 0-)
                        Recommended by:
                        celdd, samddobermann, Alec82

                        Now I've seen everything.

                        Ted Olson. Also known as George Bush's Solicitor General. Also known as the guy who represented George Bush at the Supreme Court in the Bush v. Gore case. Also known as Mr. Burns. The man is pure evil. And he's now representing a gay couple in a legal challenge in federal court to overturn Prop 8.

                        Just called Joe. We're both speechless.

                        It's difficult to explain in words how much each of us loathes Ted Olson. Of course, not any more. But you get the picture. It doesn't get any more conservative and nasty than Ted Olson. And now he's supporting gay marriage. And not just supporting it, but putting his legal muscle behind it.

                        First off, thank you Mr. Olsen. Seriously. And to our readers, this just goes to show you that even I can be fooled into thinking that some people are too far gone. As I've written on this blog many a time: Don't write people off, and don't mock people who reach out to the enemy. You'd be surprised what sometimes happens when you treat even bad guys with a modicum of decency.

                        Secondly, Ted Freaking Olson is now better on gay marriage than our president - than most of our party. Well, to be fair, let me be precise - Ted Olsen is now better on gay marriage than our president claims publicly to be.

                        I don't mind straight people as long as they act gay in public.

                        by internationaljock on Tue May 26, 2009 at 07:42:53 PM PDT

                        [ Parent ]

                      •  How naive are you? (0+ / 0-)

                        "At least, I don't think he would have."

                        Why not?  Why not try to find out the answer instead of making smart-ass comments about me because I'm asking questions?

                        •  He hasn't revealed himself to be uniquely antigay (0+ / 0-)

                          ....either, has he?

                          I mean, really, you know nothing about him on this issue and you're rushing to judgment.  

                          What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                          by Alec82 on Tue May 26, 2009 at 07:53:55 PM PDT

                          [ Parent ]

                          •  I'm asking questions... (0+ / 0-)

                            ...that need to be asked, and answered.  Since when am I expected to trust Ted Olson?  Have you done any research on him at all?

                            He was on Bush's short list for Supreme Court himself, but Bush picked Roberts instead.  He's been operating in extremely conservative legal circles for decades.  There's no reason at all to think he's genuinely on our side.

                          •  He also supported Rudy and worked on his campaign (0+ / 0-)

                            ...in 2007 and 2008.  He doesn't have any connection to the religious right, from what I can see, apart from his Republican Party membership.  

                            I see no reason to assume the worst.

                            And you simply have no basis for assuming the worst of Boies.

                            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                            by Alec82 on Tue May 26, 2009 at 08:07:14 PM PDT

                            [ Parent ]

                          •  Olson's judicial philosophy (0+ / 0-)

                            http://article.nationalreview.com/...

                            Grave damage may be done to our democratic institutions and principles by judges who exceed their authority and take decisions away from the political branches of government, the people, and the political process. Except where clearly limited by the Constitution, policy judgments must be debated and decided by citizens and the individuals they elect. Judges who reach out to decide things because they believe they know better or because they believe Congress is not doing its job are taking from the people their right to govern themselves, even if popular sentiment or congressional actions may occasionally be misguided.

                            He is being incredibly unethical by agreeing to represent these plaintiffs.  He's a crusading conservative "originalist" who has spent his career undermining the arguments needed to win a case of this kind.

                          •  Maybe he believes... (0+ / 0-)

                            ....that this issue is different.  He specifically stated in the press release that they didn't want it to be perceived as a conservative or liberal issue, and that was why he was getting involved.  

                            Still, I would like to learn more about this group.  

                            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                            by Alec82 on Tue May 26, 2009 at 09:07:38 PM PDT

                            [ Parent ]

                    •  Right... (0+ / 0-)

                      Asking questions about why a notorious arch-conservative suddenly wants to take an issue that he's never appeared to care about to the Supreme Court--that's crazy.

                  •  Neither Olson nor Boies... (2+ / 0-)
                    Recommended by:
                    celdd, MattR

                    ...has a history of civil rights litigation, equal protection litigation, due process litigation, advocacy on behalf of LGBT equality.  They have no experience whatsoever in the issues they want to take to the US Supreme Court--a Court which is currently hostile and, in fact, religiously bigoted against gay and lesbian people.

                    I don't trust that they are sincerely interested in winning the case.  It seems more likely to me that they are interested in taking the case to the Supreme Court, and then losing it, so as to get a precedent established against marriage equality while it is still a controversial issue and while the Court is still full of Republican appointees.

                    If I'm wrong, and they've suddenly seen the light and believe in this cause, good for them.  But there's still no reason to think they are the best and brightest on this particular issue to put in front of SCOTUS.  And there's certainly no reason to think now is the right time to go into the federal courts.

                    I trust Lambda Legal, the ACLU, and the other organizations who have had success in state courts to determine that--not Ronald Reagan's Iran-Contra defense lawyer, not George Bush's solicitor general, not a founder of the Federalist Society, not a board member of the American Spectator.

                    •  Well- (0+ / 0-)

                      perhaps you're right - but I hope you're wrong.

                      I don't mind straight people as long as they act gay in public.

                      by internationaljock on Tue May 26, 2009 at 07:49:27 PM PDT

                      [ Parent ]

                      •  I certainly do to (1+ / 0-)
                        Recommended by:
                        celdd

                        But this is exactly the kind of thing a smart, evil person would do--organize a weak case for Scalia and Roberts to get their hands on, so as to establish a precedent and make it more difficult for a later Supreme Court to rule in our favor.

                        Everything I've heard about Olson makes me think he's a smart, evil person.  Boies I don't know much about other than that his expertise is in corporate law, not civil rights or constitutional law.  It sounds like a bullshit setup to me, basically.

                        •  You're beginning to win me over. (0+ / 0-)

                          I tend to be naive and trust people too much.  As I said in the diary, I think this move is premature - that we need to can one of the righties off the bench before we take this issue to the Supremes.

                          If your fears are correct - then we are fucked for a long time.

                          I don't mind straight people as long as they act gay in public.

                          by internationaljock on Tue May 26, 2009 at 08:05:04 PM PDT

                          [ Parent ]

                          •  Same thing happened with sodomy laws (0+ / 0-)

                            And they disappeared in 17 years.

                            Really difficult to predict the impact of an adverse decision.  

                            What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                            by Alec82 on Tue May 26, 2009 at 08:26:26 PM PDT

                            [ Parent ]

                    •  They were also sought out.... (0+ / 0-)

                      ..because of their experience arguing before the Supreme Court, one assumes.  

                      I mean, Eugene Volokh is a member of the Federalist Society.  That alone can hardly be grounds to dismiss someone's participation.  

                      What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

                      by Alec82 on Tue May 26, 2009 at 07:53:10 PM PDT

                      [ Parent ]

                    •  asdf (0+ / 0-)

                      They have no experience whatsoever in the issues they want to take to the US Supreme Court--a Court which is currently hostile and, in fact, religiously bigoted against gay and lesbian people.

                      The Supreme Court is religiously bigoted against gays? Why have the last two major gay rights cases at SCOTUS been decided in our favor (Roemer and Lawrence)?

                      Justices supporting pro-Gay rulings: Kennedy, Ginsberg, Souter, Stevens, Breyer.

                      I believe that's five. Okay, we lost Souter. Sotomayor has never ruled on a gay rights case, so she's a wild card.

                      All you need is five. If Sotomayor is on our side, we win.

                      Long-time gay legal activist Paula Ettelbrick said she met Sotomayor in about 1991 when they both served on then-New York Governor Mario Cuomo's advisory committee on fighting bias.

                      "Nobody wanted to talk to the queer person at that time," said Ettelbrick, who represented Lambda Legal Defense and Education Fund. "She was the only one [on the advisory committee] who made a point to come over and introduce herself. She was totally interested [in gay civil rights issues] and supportive."

        •  It doesn't matter if you trust Olson (4+ / 0-)
          Recommended by:
          samddobermann, 1180, Chino Blanco, Alec82

          Olson is now representing two gay couples who want the right to marry. If he gives them anything less than his best representation, he can be disbarred. If Olson took the case, it is only because Olson feels that he can represent his clients to the best of his ability. It only matters if his clients trust him, not whether you trust him. Apparently, they trust him. That's all that matters.

  •  I wonder what the advocacy groups (3+ / 0-)
    Recommended by:
    C S McCrum, internationaljock, Alec82
    think about this.  AFAIK, Lamda Legal etal have been very careful and very disciplined in their litigation strategy.  This is a pretty risky challenge given the current SCOTUS - it's more of a hail mary rather than the west coast offense that gay legal groups have been running.

    Or, to boil that down: I wonder if they're pissed or if this has their blessing.

    We are building a team that is continuously being built. - Sarah Palin

    by burrow owl on Tue May 26, 2009 at 06:52:40 PM PDT

    •  Perhaps.... (1+ / 0-)
      Recommended by:
      burrow owl

      ...they're hoping CA won't appeal. ;)

      What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

      by Alec82 on Tue May 26, 2009 at 06:54:42 PM PDT

      [ Parent ]

    •  As an aside... (1+ / 0-)
      Recommended by:
      burrow owl

      ...I think the battle is uphill, but it is interesting to note that a New England advocacy group is challenging section 3 (federal recognition) of the defense of marriage act.  Assuming that one of the circuits applies either intermediate or strict scrutiny, it will create a split with the 8th circuit.  

      What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

      by Alec82 on Tue May 26, 2009 at 07:00:29 PM PDT

      [ Parent ]

    •  I wondered that when I heard about it too. (2+ / 0-)
      Recommended by:
      burrow owl, Alec82

      I wonder if Olson and Boies consulted with any of the major California (or national) gay rights groups before going forward with this.

      If they had asked this old queen, I would have told them to "cool their jets" for now.

      I don't mind straight people as long as they act gay in public.

      by internationaljock on Tue May 26, 2009 at 07:04:42 PM PDT

      [ Parent ]

      •  I have mixed feelings (0+ / 0-)

        The same arguments were made about Bowers and Lawrence.  Sometimes federal judicial setbacks prompt legislative action.

        On the other hand, I do wish it was a nastier marriage amendment they were challenging.  CA's ban is relatively benign compared to bans in effect in NE, VA, MI and OH.

        What has been is what will be, and what has been done is what will be done, and there is nothing new under the sun.

        by Alec82 on Tue May 26, 2009 at 07:10:02 PM PDT

        [ Parent ]

      •  That's the thing about court litigation (3+ / 0-)
        Recommended by:
        internationaljock, lalo456987, Alec82

        Advocacy groups can only go so far to squash them, because in the end it's all about individual rights.  Any ol' homosexual couple has standing to file the federal lawsuit, regardless of what the advocacy groups say.

        I say: if those advocacy groups had their act together, Prop 8 would've been defeated last year.  They can STFU if someone out there's willing to bring the lawsuit.

        •  Every step of the way (2+ / 0-)
          Recommended by:
          julifolo, Alec82

          leading gay rights groups have been cautious, and had their caution proven wrong.

          Remember, gay rights groups thought that Harvey Milk was jumping the gun to run for office.

          Gay rights groups, namely the HRC, urged gays not to fight for gay marriage, and then there was Massachusetts.

          Now gay rights groups are urging no federal cases. Profound victories are never scored with milquetoast caution.

  •  Here's a link to the story (3+ / 0-)
    Recommended by:
    tmo, internationaljock, Alec82

    http://www.sfgate.com/...

    I didn't see a link in your story, so I hunted one down.

  •  Interesting Development (0+ / 0-)

    I did a blog post about this topic too. This should be fascinating to watch. Byron York interviewed Olsen and Politico is already trying to marginalize Olsen(big surprise)

    Thanks for posting your diary. I'll add a link to it on my blog post.

    http://wwwdemocracity.blogspot.com/

    by pmorlan on Wed May 27, 2009 at 10:11:20 AM PDT

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