Video: Ted Olson and David Boies on why Prop 8 is unconstitutional

As clear and simple a case for attacking marriage laws in the courts as you’re ever likely to hear. In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry. Granted, 57 percent of the public likes it that way, but to a judge charged with protecting individual rights against majority discrimination, that’s immaterial. I’ve always suspected that the reason the Court hasn’t confronted this question directly yet is because neither the conservative wing nor the liberal wing feels confident enough about Kennedy’s swing vote. The conservatives suspect — rightly, given his record on this subject — that Kennedy will vote with the liberals; the liberals figure that, with a Democrat in the White House, they can bide their time and wait for Obama to replace one of the conservatives with a liberal, thereby assuring the outcome. I wonder if having heavyweights like Olson and Boies pushing it won’t sway the liberals to take the case this time, though. (Only four votes are needed to grant certiorari.) The oldest conservative member of the Court is Scalia at just 73, so there’s no assurance The One will be able to tip the balance with an appointment even if he serves two terms. It might be now or never.

One interesting footnote: Olson tips their hand a bit as to strategy when he refers offhandedly to discrimination against gays having no “rational basis.” That’s a legal term of art that comes from the Court’s equal protection jurisprudence. Minorities that are deemed specially vulnerable are considered “suspect classes” and laws that target them are reviewed with “strict scrutiny”; laws targeting all other groups (well, almost all other groups) are reviewed more leniently and will be upheld if the state can merely show a “rational basis” for enacting them. It sounds like Olson and Boies aren’t going to try to get the Court to declare gays a “suspect class,” which is how issues like this are normally approached, but instead will make their case on rational basis grounds. Why do it that way? Because Kennedy himself used that very same logic in his opinion for the Court in Romer v. Evans, declaring that a Colorado law declining special protection to gays had no “rational relationship” to any legitimate state interest. In other words, they’re playing straight for the swing vote. Smart.

Ed Morrissey Nov 29, 2021 8:25 AM ET