Adam B of Daily Kos has a good rundown of why Ted Olson and David Boies could win the Federal-level challenge to California’s odious Proposition 8 I mentioned the other day.
So you’ve no doubt read by now that Ted Olson — former Solicitor General of the United States, lead attorney for Governor Bush in Bush v Gore and [something] in the Arkansas Project — is now involved in trying to strike down Prop 8.  And many of you, I know, are assuming he’s somehow trying to shipwreck the cause of gay rights. ÂÂ
I don’t think so.  First of all, his co-counsel in the matter is David Boies, who represented Al Gore in Bush v. Gore and whose liberal credentials are impeccable.  This is a bipartisan effort, and while I think it’s certainly an extension of existing law, it’s not an unreasonable one to seek from the Supreme Court as presently constituted.  Here’s why.
The rest is good reading. He explains why the seemingly narrow, minimal, seemingly “harmless” language of Prop 8 might make it easier to beat under Federal Equal Protection Clause standards. There are at least three major prior Supreme Court decisions that make it very clear that animosity towards stigmatized groups is absolutely unconstitutional.
...consider the Prop. 8 question this way: is there a rational basis for the citizens of a state to withdraw the term “marriage” from its legal description of same-sex unions — and only from same-sex unions — when such a move seems solely to be motivated by the desire to stigmatize such couples compared to straight couples? In a way, Prop. 8 would have been more constitutional had it withdrawn more than the name “marriage” from same-sex unions and withdrawn concrete rights as well — because then the state could argue for some cause-and-effect linkage in the amendment in demonstrating its preference for opposite-sex unions. Now, it’s only about stigma and animus.
And in a not-entirely-heartening conclusion he lists a number of reasons why, no matter how the Court eventually rules, they can make things quite a bit better but no matter how much animosity certain Justices might feel they can’t make it any worse.
Good reading.
Submitted by 2984 (not verified) on Sat, 2009-05-30 07:44.
I'm always amazed when I finally get my blog butt over here what an amazingly good blog this is. I know that, but I don't visit often enough. Will try to do better. Thanks for the twitter props on Friday.
Submitted by 2984 (not verified) on Sat, 2009-05-30 11:09.
The trick, though, is that court precedent has established three levels of stigmatized groups. Race and religion confer the highest level of court scrutiny. Sex confers a higher level of scrunity. Past decisions have *not* regarded homosexuals as a "suspect class" (e.g., suspected a priori of being discriminated again) and thus the Boies/Olson case will have to clear a much higher bar.
I'm really excited about this case. I'm thrilled that they're invoking the Equal Protection Clause, which I've long thought ought to be applicable. I'm not sure there's nothing to lose, though, as the DK diarist implies. If the case is lost, then it also sets another precedent, which could further delay marriage equality on the federal level, where it really matters most.
Submitted by 2984 (not verified) on Sat, 2009-05-30 18:16.
Hey David,
I'm Manita's friend, and she told me you might be interested in reading my blog (url above). Let me know what you think. :) Most of it is oldish, because I don't really know where I'm going with myself right now, but...:) enjoy!