Remember this picture? Remember 2000? Bush v. Gore? In that case, Theodore Olson represented Bush at oral argument and David Boies represented Gore. Well, both are present in the current Prop. 8 fight in California. The thing is, they’re on the same side.
Byron York in the Washington Examiner:
Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.
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 personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions,” Olson told me Tuesday night. “I thought their cause was just.”
The headline of the story is Ted Olson’s decision to help bring a federal lawsuit challenging the constitutionality of Prop 8. I’m not sure the Human Rights Campaign is pleased. Watch and see whether, after the publicity and the fundraising, this lawsuit disappears. (Is Anthony Kennedy really the fifth vote for a national constitutional right to gay marriage?)
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?
UPDATE: Andrew Sullivan
UPDATE #2: Jonathan Turley
UPDATE #3: More Sully
UPDATE #4: William N. Eskridge Jr. and Darren Spedale in Slate
UPDATE #5: John Avlon at Daily Beast