New Prop 8 challenge from … Ted Olson?

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:

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.”

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?

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