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Prop 8 Goes to Washington

NY Times is reporting that Ted Olson, apparently a Boalt alum, is pursuing a federal challenge to Proposition 8 before the Supreme Court. He has won 44 of his 55 cases before the Court, including Bush v. Gore. That's right, he's a conservative.

Olson's politics and pedigree alone make this newsworthy, but the arguments he's pursuing, while not exactly earth-shattering, also provide a unique Federal spin on the issue:

In Mr. Olson?s analysis, the situation in California presents a favorable set of facts for an equal protection argument. Proposition 8 created three classes: straight couples who could marry, gay men and lesbians who had married in the brief period before the ban, and gay couples who wanted to marry but now could not.

. . .

Given that [Lawrence v. Texas] established gay sex as a protected right, Mr. Olson argues, the state must demonstrate that it has a rational basis for discriminating against a class of citizens simply for engaging in that behavior.

He dismisses [the] contention that the California ban is justified by that state?s interest in encouraging relationships that promote procreation and the raising of children by biological parents. If sexual orientation is not a choice ? and Mr. Olson argues that it is not ? then the ban is not going to encourage his clients to enter into heterosexual, child-producing marriages, he insists. Moreover, he says, California has waived the right to make that argument by recognizing domestic partnerships that bestow most benefits of marriage.

Lawrence makes homosexuality itself a constitutionally protected right, and marriage inequality discriminates against people exercising that right; therefore, gay marriage bans are unconstitutional.

Seems straightforward enough to me, but it leaves little room for compromise. A ruling in Olson's favor would not only overturn Prop 8, but also effectively legalize gay marriage everywhere in the country. Obviously, I'm in favor. The question is, are the Court and the Country ready?

Perhaps Olson's name on the docket will make them think twice before answering.

Full post as published by Nuts & Boalts on August 19, 2009 (boomark / email).