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New Prop 8 challenge from Ted Olson?
HOTAIR.COM ^ | 5/28/2009 | Ed Morrissey

Posted on 05/28/2009 6:18:34 PM PDT by SeekAndFind

After yesterday’s ruling from the California Supreme Court upholding Proposition 8’s ban on gay marriage but allowing the already-existing gay marriages to remain legal, I predicted that an inventive attorney would attack the judgment in federal court on equal-protection arguments arising from that Solomonic split. That challenge came more quickly than even I predicted, and from an unusual choice of attorneys. Byron York profiles Ted Olson’s decision to make a federal case out of Prop 8:

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"The suit argues that the state’s marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies — who argued against Olson in the Bush v. Gore case — will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also 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 while the case is being decided. …

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.”

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This gets us back to whether a ban on same-gender marriage is discriminatory. Opponents of same-sex marriage argue that each individual has the same rights as everyone else, since the state does not bar any man from marrying any woman, outside of consanguinuity, current marital status, and age of consent. Proponents, such as Olson, argue that it equates to the ban on interracial marriage, but that actually did treat people differently based on ethnicity rather than gender. It’s a specious argument, perhaps best demonstrated by the enormous opposition to gay marriage in the African-American community.

However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.

If I had to guess, I’d bet that the federal courts will punt on the matter entirely, leaving the California decision to stand on its own. They will have to recognize that the people of California amended their own Constitution to restore a definition of state-recognized marriage that was the norm for more than 200 years. They’re not going to be eager to invalidate an election, especially to force the same people to give government recognition to same-sex marriages when they’ve expressly mandated the opposite.

Having Ted Olson head this plaintiff’s legal team, along with David Boies, will certainly give some conservatives considerable pause. He’s been a hero to the Right, so much so that Rudy Giuliani tapped him for the presidential campaign to give himself credibility on judicial restraint. What happens to Olson’s standing now?


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; News/Current Events; US: California
KEYWORDS: boies; gaymarriage; homosexualagenda; lawsuit; prop8; proposition8; samesexmarriage; tedolson
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1 posted on 05/28/2009 6:18:34 PM PDT by SeekAndFind
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To: SeekAndFind

Olson is now just another body on the political trash heap of history.


2 posted on 05/28/2009 6:22:33 PM PDT by Fred (Proud Member of the Obama Enemies List)
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To: SeekAndFind

Lawyers sell their soul every day.


3 posted on 05/28/2009 6:24:48 PM PDT by bmwcyle (Hey GOP follow Dick Cheney's lead)
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To: SeekAndFind

Ted, your wife must be turning over in her grave. Why don’t you stop being a scumbag lawyer and start being a man?


4 posted on 05/28/2009 6:24:57 PM PDT by taillightchaser (!)
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To: SeekAndFind

Huh...wonder what Ann Coulter would say.


5 posted on 05/28/2009 6:40:23 PM PDT by Mamzelle (BRING CAMERA EQUIP TO TEA PARTIES--TAPE THE DISRUPTORS)
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To: bmwcyle

‘Lawyers sell their soul every day.’

And many, like Olson, get paid quite well to do so. Again, this is about money and publicity. Ever since his wife died on 9/11, I’ll always have a soft spot in my heart for the guy, and I wish him no ill will. If he didn’t jump on this band wagon, someone else would have. Having said all of this, I hope he loses this case. The Prop 8 decision needs to stand.


6 posted on 05/28/2009 6:43:01 PM PDT by joejm65
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To: joejm65

The deed is immoral and Olson should know better. Anyone can say no. So can he.


7 posted on 05/28/2009 6:46:47 PM PDT by bmwcyle (Hey GOP follow Dick Cheney's lead)
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To: joejm65
Again, this is about money and publicity.

From what I've read, Ted is a true believer. From the Daily News:

In the lawsuit, Olson and Boies argue that relegating same-sex couples to domestic partnerships instead of giving them full marriage privileges violates the equal protection and due process clauses of the 14th Amendment of the U.S. Constitution.

Olson sought to allay suspicions from some gay advocates that he has sided with anti-gay positions in the past by declaring his unconditional support for same-sex marriage.

"These are our neighbors, co-workers, teachers, friends and family, and courtesy of Proposition 8 California now prohibits them from exercising this basic, fundamental right of humanity," Olson said.

"Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not."


8 posted on 05/28/2009 6:57:14 PM PDT by calcowgirl (RECALL Abel Maldonado!)
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To: bmwcyle

‘The deed is immoral and Olson should know better. Anyone can say no. So can he.’

Murder is also immoral, but murderers get their day in court. They also are entitled to a defense. Our system is maddening, but it’s still the best in the world.


9 posted on 05/28/2009 7:01:34 PM PDT by joejm65
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To: calcowgirl

‘From what I’ve read, Ted is a true believer.’

Then let him follow his conscience. If he doesn’t take the case, someone else will. He believes marriage is a ‘basic, fundamental right of humanity’. However, this argument doesn’t win when it pertains to polygamy or marriage between (most kinds of) relatives. It’s pretty clear that, by law, many types of marriage are not allowed. Now’s the point where same-sex marriage will be added to that list.


10 posted on 05/28/2009 7:09:18 PM PDT by joejm65
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To: SeekAndFind

Whenever there is a defendant in a notorious case, somebody like Timothy McVeigh, I always smell a rat when, out of the woodwork, comes some “top lawyer with a national reputation” to take over the case from the local public defender or mall lawyer defending him.

If you want to know *why* I distrust this, call it the “Breaker Morant” principle. If you’ve seen the movie, it is about military officers that are being railroaded in a trial. However, the important thing is that they were denied a “good” attorney, and given an inexperienced, but honest and energetic young attorney to defend them, and he *almost* got them an acquittal.

If you want to railroad someone in a trial, the last thing you want is an “unknown factor”, that could ruin the case. You want everything to be under your control to insure a conviction, and in these cases, an execution.

The way to get around this is to bring in a “professional loser”, who everybody, including the defendant, thinks is doing a great job defending him, but who screws up just enough to *insure* a conviction.

And that is where the big “Washington lawyer” comes in. They are the guaranteed nail in your coffin, to insure you have no, zero chance of getting an acquittal, mistrial, appeal, or any other way around your conviction.

Kenneth Starr was this, in reverse. He was hired to *guarantee* that no serious charges would be brought against Bill Clinton. Also to occupy space and use up resources that someone else might have used to nail that corrupt SOB on any number of *real* criminal charges.

No, Ken Starr was the best friend Bill Clinton ever had.

And the same rule applies to whatever big name lawyer is out there, such as Ted Olson and David Boies. They are utterly indifferent to these gay couples. Probably indifferent to the California law. Their interest is at the *federal* level.

So whose side are they really on? Have they been ordered by their overlords to create a case for the new SCOTUS, on appeal? The purpose in doing so would be to legislate national gay marriage from the bench, like Roe v. Wade was legislated. That is, their real bosses would have counted heads at the SCOTUS, and figured they will win if a good test case is brought before them.

Conversely, though I’m not betting on it, Olson and Boies might have been ordered to so screw up gay marriage at the federal level, that it has no chance of being pushed through by a lower federal bench.

The point is, that lawyers of this kind are never doing what they appear to be doing, so should always be looked at with the darkest of distrust and skepticism. They are just as likely to be doing exactly the opposite of what they are supposed to be doing, as doing something so inscrutable, the entire game is ruined.


11 posted on 05/28/2009 7:15:13 PM PDT by yefragetuwrabrumuy
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To: SeekAndFind
I may be wrong but bear with me as I don my tin foil hat. I think Ted Olsen is doing this because he knows that Prop 8 will stand in the face of a federal challenge. Remember the liberal California Supreme Court ruled 6-1 in favor of Prop 8. Once it is ruled in favor by federal judges the sodomites have lost all hope of judicial fiat which is the only road they have. Every state that has put sodomite marriage on the ballot, the pedophiles have lost. The states that allow sodomite marriage have ALL been through judicial fiat. Once precedent is set at the federal level the sodomites are screwed.
12 posted on 05/28/2009 7:16:59 PM PDT by skimask (When dealing with people who value death over life, traditional means of deterrence will not work)
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To: SeekAndFind

I read today of Ted Olson’s action. What a real political scum animal.


13 posted on 05/28/2009 7:29:11 PM PDT by lilylangtree (Veni, Vidi, Vici)
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To: skimask
I'm with you on this. Even if Ted Olson really believes what he's saying, the result is very likely to be a Supreme Court decision that states that same-sex marriage is NOT a fundamental Constitutional right.

That may well stand for a generation, and be firmly in place by the time a full faith and credit case tests DOMA.

14 posted on 05/28/2009 7:39:01 PM PDT by hunter112 (SHRUG - Stop Hussein's Radical Utopian Gameplan!)
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To: joejm65
If he doesn’t take the case, someone else will.

That's the excuse of every evil doer.

15 posted on 05/28/2009 8:34:45 PM PDT by donna (Gasoline usage: Demand dropped 9.6% in 2008; total decline from 2005 thru 2008 was 28%)
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To: yefragetuwrabrumuy
If you want to know *why* I distrust this, call it the “Breaker Morant” principle.

Damn - great, great post! But I just fought you on another thread! Sigh. Can't you be a consistent bad guy? I hate having to think through everything.

16 posted on 05/28/2009 8:56:35 PM PDT by Talisker (When you find a turtle on top of a fence post, you can be damn sure it didn't get there on it's own.)
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To: SeekAndFind

This may be Teds way of coming out.


17 posted on 05/28/2009 11:46:06 PM PDT by A6M3
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To: joejm65

There is no such thing as gay marriage. Justice in this case does not exist.


18 posted on 05/29/2009 2:52:14 AM PDT by bmwcyle (Hey GOP follow Dick Cheney's lead)
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To: bmwcyle

Since, according to you (and me as well), gay marriage doesn’t exist, then there’s no harm in letting a court decide that fact again. I don’t believe Olson’s argument holds water, and there’s already talk that this court action will be scrapped. Some Prop8 opponents are afraid that losing this case will result in overturning the gay marriages that were upheld by the CA supreme court.


19 posted on 05/29/2009 5:34:13 AM PDT by joejm65
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To: joejm65

Then we should tie up the courts saying something like black people don’t have enough air. What a stupid waste of our courts. This is foolish and a waste of time.


20 posted on 05/29/2009 5:49:39 AM PDT by bmwcyle (Hey GOP follow Dick Cheney's lead)
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