Lawyers David Boies and Theodore B. Olson were on the opposite sides of a case that determined a presidency.
Now they’ve joined forces in a case that could alter the definition of marriage in the country.
Boies, who represented Al Gore in the 2000 Florida vote-recount case, has teamed up with Olson, who represented the ultimately victorious George W. Bush.
They’ve filed a lawsuit in federal court challenging Proposition 8, California’s ban on gay marriage.
In addition to asking that Proposition 8 be declared unconstitutional, the lawyers are also seeking an injunction against the enforcement of the ban.
“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said in announcing the suit.
Engaged by the American Foundation for Equal Rights, Olson and Boies are representing two same-sex couples in the case.
The lawyers argue, among other things, that Proposition 8 denies the couple the right to marry and violates the equal-protection clause of the 14th Amendment.
For a short period before the passage of Proposition 8 last year, gay marriage in California was legal, the California Supreme Court having declared the state law prohibiting same-sex marriage to be unconstitutional.
Voters in California last November then narrowly approved Proposition 8, amending the state constitution to define marriage as between a man and a woman.
Earlier this week, the California Supreme Court upheld Proposition 8 as a proper amendment to the constitution.
The decision by Boies and Olson to file a suit in federal court drew some criticism from lesbian and gay advocacy groups.
“I’m torn, to be honest with you,” Therese Stewart, chief deputy city attorney of San Francisco, who argued the case for overturning Proposition 8 before the California Supreme Court, told The Wall Street Journal.
“On the one hand, this is not some schlumpy pair of lawyers nobody has ever heard of here. But the fear is you get a bad decision under the U.S. Supreme Court.”
John Dean, the former counsel to President Nixon, looks at the risks inherent in the suit in an essay on FindLaw.com.
He notes that advocacy groups such as the ACLU have declared that now is the time to ask voters, rather than the generally conservative federal courts, to change the definition of marriage.
“It would be wonderful if Olson and Boies were to succeed,” Dean writes. “It will be a disaster if they fail.”
In addition to his efforts for Gore, Boies is best known for representing the U.S. government in the late 1990s in its anti-trust case against Microsoft.
Olson was the U.S. solicitor general under President George W. Bush, serving from June 2001 to July 2004.
The men have also teamed up to advise Steven Brill and the other founders of Journalism Online LLC, an effort to find ways for media publishers to make their Internet efforts profitable.
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5 Comments
#1. FlexSF 05.31.2009
The definition of marriage has already changed. It is highly entertaining how religious zealots are in absolute denial of this reality. Their ignorance will not prevent gay marriage from becoming the law of the land.
#2. Steve 05.31.2009
We know that marriage equality is going to go to federal court eventually. The issue cannot be won in state courts, since half the states now have constitutional bans. Here we have a very narrow case, in which a state has committed a very clear violation of the federal constitution. The state court opinions even use the words “equal protection” and say that the new amendment is a clear violation of equal protection. We have the precedents that we need to win that federal case, including opinions written by sitting justices. The equal protection violation is so clear that a first year law student should be able to win in court, but we have the two most prominent constitutional lawyers in the country. Supreme court justices sometimes let their prejudices decide if the case is close. This case isn’t close. It is a clear slam-dunk violation of equal protection.
I think the ACLU, the HRC, and several other “civil rights” organizations are against this suit for financial reasons. They make lots of money from fund-raising the GLBT community, and that money pays their salaries. If Olsen and Boies win, those organizations will have to find new revenue sources, or cut their salaries and lay off staff. ACLU was much more effective many years ago, when they operated on a shoe string budget, and their lawyers actually wanted to win the cases. Now, they get handsome salaries for never taking a risk, and never reaching the goal.
#3. James 05.31.2009
Steve-
This issue has already been before the US Supreme Court. Review the history of Baker v Nelson.
Essentially, the Supreme Court acknowledged that marriage laws are within state jurisdiction and that state laws prohibiting same-sex marriage do not violate the US Constitution. The court said there was no federal issue in question and refused to even hear the argument. Due to that binding precedent, these recent filings in US District Court can not be heard. Only the US Supreme Court can change their own established precedent. If state laws prohibiting same-sex marriage did not violate the Constitution at the time of Baker v Nelson, they do not violate it now either.
The precedent of Baker v Nelson refutes your claim here that even a first year student could win based on equal protection within the US Constitution. While a state may determine there is an equal protection violation of the state Constitution, there is no such protetion for marriage within the US Constitution. It is simply a matter of state rights.
The best federal argument is one that seeks repeal of the DOMA- either to be thrown out by the courts for impinging upon state rights, or repealed by Congress for the same.
#4. Kelly 06.01.2009
I thought that this issue was already brought up to the S. Court, and they left it up to the states. My problem is if these lawyers win, what is this going to do state and voters rights? It will open up a whole can of worms.
#5. Alan 06.01.2009
It seems to me the perfect summary of the article is in the words of Boies and Olson, “The lawyers argue, among other things, that Proposition 8 denies the couple the right to marry and violates the equal-protection clause of the 14th Amendment.”
What if every minority group in the nation had there rights as human beings put to an up or down vote?
Why would that be different? I think Pastor Martin Niemöller said it best with:
“When the Nazis came for the communists, I remained silent; I was not a communist. Then they locked up the social democrats, I remained silent; I was not a social democrat.
Then they came for the trade unionists, I did not protest; I was not a trade unionist.
Then they came for the Jews, I did not speak out; I was not a Jew.
When they came for me, there was no one left to speak out for me.”
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