The phrase "unforeseen consequences" may apply in the Ted Olson/David Boise lawsuit challenging the California Supreme Court ruling that upheld Proposition 8, banning gay marriage.
Says John Dean, former Nixon counsel and famous Watergate unmasker,
It is an aggressive undertaking that could end marriage discrimination against gays, but it could also backfire, and set back efforts that have been proceeding state by state, with considerable success, over the past decade. Find Law
The gist of Dean's opinion essay is that many Federal judges, and even the Supreme Court, may be hostile to the legal duo's arguments.
The lawsuit was filed in the U.S. District Court for the Northern District of California and has been assigned to Chief Judge Vaughn Walker who is a Reagan nominee (unappointed) and successful appointment of Bush I.
Walker is considered an unpredictable judge who most famously ruled against the government in the FISA case alleging illegal spying, saying
. . .Bush’s claims to have inherent authority outside of those rules did not pass Constitutional muster. Wired (good analysis)
In short, Judge Walker
affirmed that the Foreign Intelligence Surveillance Act is the exclusive legal method for conducting surveillance inside the United States against suspected spies and terrorist.
More from Salon on the famous FISA case concludes that Judge Walker, in effect with this ruling, declared George W. Bush a felon.
Further upholding his position on FISA authority, it was Judge Walker who defied President Obama with his April ruling in the al-Haramain warrantless wiretapping case that denied the government’s emergency request to hide certain documents, asserting the supremacy of the rule of law over Obama's plea of "state secrets." See mcjoans diary, District Court: What FISA Did, What the FISA Capitulation Does, for more analysis of the ruling.
On the other hand, Judge Walker
. . .ruled that it was not excessive force when police swabbed pepper spray in the eyes of nine Humboldt County forest activists a year ago. Monitor
. In effect, saying that the law "did not require police to use the least force possible." Opponents to his ruling said the police's actions was tantamount to torture. Another controversial decision by the judge ventures into newspaper acquisitions.
U.S. District Judge Vaughn Walker ruled yesterday that Hearst Corp., owner of the San Francisco Examiner, can acquire the San Francisco Chronicle and end the joint operating agreement between the two papers without violating antitrust laws.
Because Judge Walker was appointed by a conservative president, the feeling of those disinclined toward the Olson/Boies action is that the waters are too dangerous, laden with conservative judges who might rule in a manner to set anti-gay-rights precedents.
Win or lose at the trial-court level, this is an immediately appealable matter, so it will be in the hands of the Ninth Circuit [Court of Appeals] relatively soon. And if, as expected, the plaintiffs win before the Ninth Circuit, that ruling will certainly be appealed to the Supreme Court by those who want to keep the California ban, and possibly expand it to other states. Dean
In light of Judge Souter's announced retirement and the likelihood of Sotomayor's appointment, the risk remains high since the balance of conservative power is unchanged, and no one knows how Obama's nominee will treat gay rights to marriage -- her vote is unclear. Even with it, the liberal-moderate end of the court would be a minority, threatening to overrule the Ninth Court of Appeals, if it sides with Olson/Boies. Justice Kennedy, another key vote, is also another unknown.
Consequently both the ACLU and LGBT rights organizations are opposed to Olson/Boies, noting that a
loss in the U.S. Supreme Court on this issue would have a seriously negative impact on the state courts that have been striking down marriage bans on their own.
Neither group questions the solid motives behind the team's lawsuit, only the possibility of it backfiring.
Opponents support the status quo of tackling the same-sex marriage issue on a state-by-state basis that allows the increasingly center-left will of the people a better chance to prevail in one small than national venue after another.
Also, because this is a non-law issue (there are no federal laws defining marriage), the risk of constant challenges to even a favorable Supreme Court ruling might expect a future parallel to Roe v. Wade, which is constantly being attacked.
The Olson/Boies lawsuit is being underwritten by the American Foundation for Equal Rights (AFER), which
is being funded by individuals associated with the production of the successful Hollywood feature "Milk" – the story of the late San Francisco Board of Supervisors member and gay rights activist Harvey Milk.
.