On the Road to SCOTUS - Prop 8 Federal Challenge Filed

[danefan]

Filed jointly by two of the most uncommon partners you'll see in Court - Ted Olson and David Boies (yes, of Bush v. Gore fame among others).

Ted Olson is notoriously uber conservative and represented Bush in the Bush v. Gore. David Boies is a very liberal guy and represented Gore.

http://www.reuters.com/article/domestic ... 22&sp=true

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

Olson, Boies, and other attorneys working on the suit are being compensated by the American Foundation for Equal Rights, Olson said his law firm and others also are contributing resources pro bono. As of press time, no website could be found for the newly formed organization. Olson and his representatives declined to specify who was funding the campaign.

The plaintiffs in the suit are Kristin Perry and Sandra Stier of Berkeley, Calif., and Paul Katami and Jeffrey Zarrillo of Burbank, Calif. Perry is executive director of First 5 California, a state health and education agency.

http://www.advocate.com/news_detail_ektid86253.asp

[TwinTownBisonFan]

Filed jointly by two of the most uncommon partners you'll see in Court - Ted Olson and David Boies (yes, of Bush v. Gore fame among others).

Ted Olsen is notoriously uber conservative and represented Bush in the Bush v. Gore. David Boies is a very liberal guy and represented Gore.

http://www.reuters.com/article/domestic ... 22&sp=true

“For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson said in an interview with The Advocate. “The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

When pressed about his service with the Bush administration, which in 2004 endorsed an amendment to the U.S. constitution that would prohibit same-sex marriage, Olson said he was personally against the amendment at the time, though he made no public statements on the matter.

As for the timing of the suit, Olson said that recent decisions by the U.S. Supreme Court “make it clear that individuals are entitled to be treated equally under the Constitution. I’m reasonably confident that this is the right time for these [injustices] to be vindicated.”

Olson, Boies, and other attorneys working on the suit are being compensated by the American Foundation for Equal Rights, Olson said his law firm and others also are contributing resources pro bono. As of press time, no website could be found for the newly formed organization. Olson and his representatives declined to specify who was funding the campaign.

The plaintiffs in the suit are Kristin Perry and Sandra Stier of Berkeley, Calif., and Paul Katami and Jeffrey Zarrillo of Burbank, Calif. Perry is executive director of First 5 California, a state health and education agency.

http://www.advocate.com/news_detail_ektid86253.asp

never figured Ted Olson would do this...

wow.



We're off on the road to SCOTUS...

[wkuhillhound]

Bravo. Anyone with a half a brain would have called this one.

[dbackjon]

Very interesting pairing.

Apparently, Ted Olson has remarried (his wife was on the plane that crashed into the Pentagon), and she is fairly liberal.

[JoltinJoe]

Talk about "Profiles in Courage" and standing up for something you believe in. Needless to say, Ted Olson is done in politics as a result of this.

Bold move for Ted. To grant certiorari, four members of the Court must vote to take the case. Who? Ginsburg, Souter, Stevens, Breyer. The votes for cert are.

But the other members of the Court view questions of who may marry as exclusively state law concerns. Cert may be granted right now but this goes down 5-4 right now.

[dbackjon]

Talk about "Profiles in Courage" and standing up for something you believe in. Needless to say, Ted Olson is done in politics as a result of this.

Bold move for Ted. To grant certiorari, four members of the Court must vote to take the case. Who? Ginsburg, Souter, Stevens, Breyer. The votes for cert are.

But the other members of the Court view questions of who may marry as exclusively state law concerns. Cert may be granted right now but this goes down 5-4 right now.

How could they rule it is strictly a state law concern when there are major federal marriage laws/benefits?

[JoltinJoe]

Talk about "Profiles in Courage" and standing up for something you believe in. Needless to say, Ted Olson is done in politics as a result of this.

Bold move for Ted. To grant certiorari, four members of the Court must vote to take the case. Who? Ginsburg, Souter, Stevens, Breyer. The votes for cert are.

But the other members of the Court view questions of who may marry as exclusively state law concerns. Cert may be granted right now but this goes down 5-4 right now.

How could they rule it is strictly a state law concern when there are major federal marriage laws/benefits?

They view the question of who may marry as a question of state law. Thereafter, anyone who is legally married according to the laws of a state jurisdiction may avail themselves of the federal benefits.

This is why I think ultimately proponents of gay marriage must prevail in state legislatures. There has never been any federally recognized right to marry in accordance with one's preference. If the rules are going to change, it is going to happen at the state levels, unless the Supreme Court is prepared to find a fundamental right to marry in accordance with one's preference. (And even that would be too broad -- it would have to recognize than an adult has a fundamental right to marry one other adult of his or her preference, less the court open the door to bigamists and people with even darker preferences. But in so holding, the court would be pretty plainly legislating rather than interpreting).

[danefan]

How could they rule it is strictly a state law concern when there are major federal marriage laws/benefits?

They view the question of who may marry as a question of state law. Thereafter, anyone who is legally married according to the laws of a state jurisdiction may avail themselves of the federal benefits.

This is why I think ultimately proponents of gay marriage must prevail in state legislatures. There has never been any federally recognized right to marry in accordance with one's preference. If the rules are going to change, it is going to happen at the state levels, unless the Supreme Court is prepared to find a fundamental right to marry in accordance with one's preference. (And even that would be too broad -- it would have to recognize than an adult has a fundamental right to marry one other adult of his or her preference, less the court open the door to bigamists and people with even darker preferences. But in so holding, the court would be pretty plainly legislating rather than interpreting).

I agree this is a bit of reach, but do you honestly think Olson would put his political career on the line for a stretch argument?

Both of these guys are most certainly doing this pro-bono and I'm not so David Boies would put the resources of his firm (Boies Schiller & Flexner) on the line had he not thought he was at least going to be granted cert at some point right?

The interesting thing to me is that they seem to be trying to fast track this, seeking an injunction against Prop 8. Joe or Ivy, how quick do you think they can get to requesting cert in this case? 6 months, 1 year?

[TwinTownBisonFan]

1. federal supremacy means a state constitution that violates equal protection is invalid

2. anthony kennedy is a swing vote on the court, and i doubt he would be an automatic "no" on this

3. joe, just because you don't like it, doesn't mean it won't happen... oh btw... how pissed are you about that rampant instance of "judicial activism" known as Brown vs. Board of Ed?

[JoltinJoe]

1. federal supremacy means a state constitution that violates equal protection is invalid

2. anthony kennedy is a swing vote on the court, and i doubt he would be an automatic "no" on this

3. joe, just because you don't like it, doesn't mean it won't happen... oh btw... how pissed are you about that rampant instance of "judicial activism" known as Brown vs. Board of Ed?

I have taught constitutional law at an accredited law school, so perhaps my opinions are somewhat more informed that you apparently grasp.

I'm making observations about the status of the issue; no value judgments being implied. The votes are simply not there for what would be an extraordinary and unprecedented ruling by the US Supreme Court.

As for Anthony Kennedy, the only time he has ever voted in a way which would be deemed "activist" or "expansive" on civil rights is when he has voted to uphold a "right" previously upheld by the court ("privacy" in Lawrence; "abortion" is Casey). He has never voted more expansively than that. So I doubt he's the fifth vote, particularly when there is compelling precedent instructing the court to let the states decide this type issue. You may be right, but I don't see Kennedy siding in this case on what would amount to, at least, an entirely new understanding, and a rather extraordinary expansion, of existing "privacy" or "equal protection" law.

PS -- Your comment about Brown is both snarky and ignorant. Brown was not a case of judicial activism, it was a case of a simple application of the equal protection clause.

[JoltinJoe]

I agree this is a bit of reach, but do you honestly think Olson would put his political career on the line for a stretch argument?

Both of these guys are most certainly doing this pro-bono and I'm not so David Boies would put the resources of his firm (Boies Schiller & Flexner) on the line had he not thought he was at least going to be granted cert at some point right?

The interesting thing to me is that they seem to be trying to fast track this, seeking an injunction against Prop 8. Joe or Ivy, how quick do you think they can get to requesting cert in this case? 6 months, 1 year?

I think it is a stretch with this Court. But with Sotomayor, and then another Obama appointment to replace one of the conservative wing, the dynamics of this change considerably. Olson probably knows it is a stretch today, but he may also be looking toward the future and laying the foundation now. Right now, though, the members of the conservative wing are generally younger and healthier than the liberal wing of the court, so there is no telling when Obama will get to replace one of them.

You have 90 days from the entry of a final decision of the state's highest court to file for certiorari, but of course you can do more quickly. Opponents get 30 days to file opposition, or a statement that the case is not worthy of certiorari review. I see no reason why the Court would expedite these deadlines, and I doubt an emergency application to stay the ruling will be sought or, if sought, granted.

The Court does not conference on certiorari petitions during the summer. In all probability, it will be October, at the earliest, before the Court confers on this case.

[Ivytalk]

I agree this is a bit of reach, but do you honestly think Olson would put his political career on the line for a stretch argument?

Both of these guys are most certainly doing this pro-bono and I'm not so David Boies would put the resources of his firm (Boies Schiller & Flexner) on the line had he not thought he was at least going to be granted cert at some point right?

The interesting thing to me is that they seem to be trying to fast track this, seeking an injunction against Prop 8. Joe or Ivy, how quick do you think they can get to requesting cert in this case? 6 months, 1 year?

I think it is a stretch with this Court. But with Sotomayor, and then another Obama appointment to replace one of the conservative wing, the dynamics of this change considerably. Olson probably knows it is a stretch today, but he may also be looking toward the future and laying the foundation now. Right now, though, the members of the conservative wing are generally younger and healthier than the liberal wing of the court, so there is no telling when Obama will get to replace one of them.

You have 90 days from the entry of a final decision of the state's highest court to file for certiorari, but of course you can do more quickly. Opponents get 30 days to file opposition, or a statement that the case is not worthy of certiorari review. I see no reason why the Court would expedite these deadlines, and I doubt an emergency application to stay the ruling will be sought or, if sought, granted.

The Court does not conference on certiorari petitions during the summer. In all probability, it will be October, at the earliest, before the Court confers on this case.

I agree with Joe on the timing, which is black-and-white. It's hard to get an injunction or stay pending SCOTUS review. In my view, the real fight will be over the constitutionality of DOMA. If federalism works as it should, the full-faith-and-credit question looms large. Just my two cents.

[JoltinJoe]

I think it is a stretch with this Court. But with Sotomayor, and then another Obama appointment to replace one of the conservative wing, the dynamics of this change considerably. Olson probably knows it is a stretch today, but he may also be looking toward the future and laying the foundation now. Right now, though, the members of the conservative wing are generally younger and healthier than the liberal wing of the court, so there is no telling when Obama will get to replace one of them.

You have 90 days from the entry of a final decision of the state's highest court to file for certiorari, but of course you can do more quickly. Opponents get 30 days to file opposition, or a statement that the case is not worthy of certiorari review. I see no reason why the Court would expedite these deadlines, and I doubt an emergency application to stay the ruling will be sought or, if sought, granted.

The Court does not conference on certiorari petitions during the summer. In all probability, it will be October, at the earliest, before the Court confers on this case.

I agree with Joe on the timing, which is black-and-white. It's hard to get an injunction or stay pending SCOTUS review. In my view, the real fight will be over the constitutionality of DOMA. If federalism works as it should, the full-faith-and-credit question looms large. Just my two cents.

I gather you mean DOMA is suspect because of the full-faith-and-credit clause. I agree with that.

I have to confess I never read the linked story and I thought it was about Boies and Olson being hired to file a petition for certiorari from the California court ruling yesterday. In truth, they are filing a separate federal lawsuit challenging the constitutionality of Prop 8. I originally didn't understand why you were talking about DOMA, but now I get it is likely that one count of this complaint is going to challenge the constitutionality of DOMA. That act is both unwise and unsound. Does anyone know if DOMA is already being challenged in the courts?

[danefan]

I agree with Joe on the timing, which is black-and-white. It's hard to get an injunction or stay pending SCOTUS review. In my view, the real fight will be over the constitutionality of DOMA. If federalism works as it should, the full-faith-and-credit question looms large. Just my two cents.

I gather you mean DOMA is suspect because of the full-faith-and-credit clause. I agree with that.

I have to confess I never read the linked story and I thought it was about Boies and Olson being hired to file a petition for certiorari from the California court ruling yesterday. In truth, they are filing a separate federal lawsuit challenging the constitutionality of Prop 8. I originally didn't understand why you were talking about DOMA, but now I get it is likely that one count of this complaint is going to challenge the constitutionality of DOMA. That act is both unwise and unsound. Does anyone know if DOMA is already being challenged in the courts?

I was going to point that out but then I thought I had missed something.

And there is a current DJ action DOMA challenge in the MA District Court that was filed in March.
Gill v. Office of Personnel Management
http://dockets.justia.com/docket/court- ... id-120672/

Here is the complaint:
http://www.glad.org/uploads/docs/cases/ ... -03-09.pdf


Oh and if you couldn't tell by the research and posting increase - this is the slowest two days I've had since I started at my firm. Kind of scary actually.....

[CID1990]

Very interesting pairing.

Apparently, Ted Olson has remarried (his wife was on the plane that crashed into the Pentagon), and she is fairly liberal.

Most people aren't that malleable. My wife is much more liberal than I am (although her grandfather was a prominent Republican Congressman and her family's politics remain much like his were) but her politics have no effect on mine.

That being said, I have no real issues with gay marriage. I think gays should have the right to be as miserable as the rest of us. However, putting the issue to a popular vote was DUMB, DUMB, DUMB and the gay community in California has nothing but their own political naivete to blame for this. A popular vote is VERY hard to overcome by judicial process. Judges DO NOT like to reverse popular decisions, and this is why the whole Proposition 8 thing was ill conceived. Maybe the SCOTUS will reverse the vote, but precedent shows that it is very unlikely.

Why was this a mistake? Because they attached the question to a very historic ballot; one where minorities were going to vote in unprecedented numbers. I guess the progressives felt that minorities, in the current atmosphere of brotherly love, kum ba yah and the first black President would suddenly shed their overwhelming bigotry towards gays and vote in gay marriage. Who defeated gay marriage in California? The minority vote. By over 70%. I still cannot figure for the life of me why they attached the question to that ballot. My brother is gay (and a political attorney) and when he saw when the question was going to be placed on the ballot in the November election he predicted the loss that day. Even a fool could see it.

[dbackjon]

CID1990 - one correction - gays did not put it to a popular vote.

The ANTI-GAY forces put it to a vote to OVERTURN legalized gay marriage.

[JoltinJoe]

Oh and if you couldn't tell by the research and posting increase - this is the slowest two days I've had since I started at my firm. Kind of scary actually.....

I've been on a conference call/arbitration the last couple days that I've been listening in on. We're wrapping up right now. Looks like I'm going to have to go back to work tomorrow!

[dbackjon]

I have really liked the opinions/legal knowledge from all of you!

[CID1990]

CID1990 - one correction - gays did not put it to a popular vote.

The ANTI-GAY forces put it to a vote to OVERTURN legalized gay marriage.

You're correct, but there was little opposition, compared to the screaming and yelling that happened when the anti-gay crowd was borne out by the vote. The gay community thought the vote was going to go their way. If they had agitated as much in November as they are doing now, they could have had the referendum moved.

[SuperHornet]

This is weird given the fact that what I saw in the paper today indicated that Prop 8 foes were poised to keep challenges at the state level.

Their whole take on 8 was a bit weird to me given that it was a Constitutional amendment. They tried to argue that a part of the Constitution was unconstitutional, which is a stretch in logic to me. I would have thought that the only way to dump an an amendment to a state Constitution was to challenge it at the Federal level, which they seem to not want to do for some reason. I'm not sure I understand that logic.

Given the fact that there's a push already out to hold a Constitutional Convention to completely replace the state Constitution (there are about a zillion extraneous amendments that mandate funding that the Legislature is powerless to cut), perhaps that would be the place for Prop 8 opponents to start. Personally, I hope it stays put, but to me that would be the logical place to start for those that would like to dump it.