Wow. As Salon’s War Room reports, Theodore Olson – who represented Bush in Bush v. Gore and served as Solicitor General under Bush – has teamed up with the opposing attorney from Bush v. Gore, David Boies. As if that weren’t weird enough, they’re both fighting for marriage equality! On behalf of two couples (one lesbian, one gay), they’re petitioning a federal court to overturn Proposition 8.
But here’s where the weirdness turns to coolness: They hope to take this challenge all the way to the Supreme Court. Their intent is apparently to set a federal precedent that would require marriage equality in all states by declaring all other arrangements unconstitutional.
Their argument? Equal protection! If both Ted Olson and I agree on it, can it possibly be wrong?
Here’s how they put it in their complaint:
More than 30 years, ago, the Supreme Court of the United States recognized that “[m]arriage is one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.” Loving v. Virginia, 388 U.S. 1, 12 (1967). But today, as a result of the passage of Proposition 8 in November 2008, the State of California denies its gay and lesbian residents access to marriage by providing in its constitution that only a civil marriage “between a man and a woman” is “valid or recognized in California.” Cal. Const. Art. I § 7.5 (“Prop. 8”). Instead, California relegates same-sex unions to the separate-but unequal institution of domestic partnership. See Cal. Fam. Code §§ 297–299.6. This unequal treatment of gays and lesbians denies them the basic liberties and equal protection under the law that are guaranteed by the Fourteenth Amendment to the United States Constitution. …
This action pursuant to 42 U.S.C. § 1983 seeks (1) a declaration that Prop. 8, which denies gay and lesbian individuals the opportunity to marry civilly and enter into the same officially sanctioned family relationship with their loved ones as heterosexual individuals, is unconstitutional under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the United States Constitution …
I teared up when I read this. I loved their invocation of Loving v. Virginia, which is more than just an assertion of the right to marry as a basic civil right; it suggests a parallel with the right to marry across lines of color or race. Whether or not that parallel works legally, it sure resonates emotionally.
If this case really does go all the way to the SCOTUS and if the plaintiffs prevail, it could do for marriage equality what Roe v. Wade did for abortion rights. That’s both good and bad. The negative is that there would surely be a public backlash against a decision imposed by judicial fiat, as there was after Roe. But that’s no reason to hesitate. The backlash is doomed to extinction. Young people already support marriage equality in overwhelming numbers. There’s no reason for today’s couples to wait another generation until public opinion catches up with basic fairness.
Update 1, 9 p.m., 5/28/09: Via Unrepentant Hippie, here’s an actual lawyer, John Dean, discussing the outlook for this approach on Keith Olberman’s show. Dean agrees that constitutionally, equal protection ought to guarantee marriage equality. However, he cautions that other supporters of it haven’t gone to the Supreme Court because it’s by no means certain how they’d rule. I’m afraid it’ll all come down to Justice Kennedy again, and that’s not reassuring.
Update 2, 10 p.m., 5/28/09: Pam Spaulding has a wonderfully nuanced discussion of Olson and Boies’ case, which pro-marriage equality legal scholars seem to consider a highly risky strategy. All the more reason to wish that the equal protection argument had been more seriously pushed at the level of the California Supreme Court.