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Bush v. Gore Odd Couple Challenge Prop 8 in Federal Court

By Kevin Fayle on May 28, 2009 | Last updated on March 21, 2019
Ted Olson, who argued for George W. Bush in Bush v. Gore and later became Solicitor General during the Bush administration, and David Boies, who argued on behalf of the Gore camp in Bush v. Gore, have teamed up to challenge California's Proposition 8 in federal court.  Olson has indicated that he expects the case to go all the way to the United States Supreme Court.

The real story here doesn't involve the complaint itself, which pretty much spells out a standard due process and equal protection suit, but instead centers on the lawyers who have brought it.  Olson has acted as a flag-bearer for the conservative movement within the legal world for decades, and as Solicitor General made the Bush administration's most right-wing arguments before the Supreme Court.
Now he's teamed up with David Boies, a dyed-in-the-wool liberal, to bring a lawsuit that could end up setting legal precedent in one of the great civil rights and cultural issues of our day.

What gives?

Not all opponents of Prop. 8 are happy about the lawsuit, but the unlikely duo is shrugging off pleas and criticism from gay rights groups, who argue that now is not the time for a federal challenge given the conservative slant of the current Supreme Court when it comes to social issues.

Olson had this response, as quoted by the WSJ Law Blog: ""When an individual comes to you and his or her constitutional rights are being violated, what do you tell them? Do you tell them yes I'm a lawyer, but I won't take your case? Do I tell them to go wait a year until the time is right? I don't think so."

Plus, the suit calls for an injunction on the enforcement of Prop. 8 while the suit is pending, which would give more gay couples the chance to marry while the suit winds its way through the federal courts.  The timing of the suit might just be a way to allow those couples who didn't finalize their nuptials before Prop. 8 to have another shot at it.

Many people see a conspiracy afoot, and claim that Olson is bringing the case because he really does oppose gay marriage and knows that the Supreme Court will strike down the suit's constitutional arguments and set the gay marriage movement back to square one.

The presence of Boies, however, seems to argue against this theory since it is highly unlikely that Boies is a closeted conservative on this issue. 

Olson dismissed the conspiracy theory as absurd: "It's hard for me to take that seriously.  I've practiced law for 45 years and David [Boies] has a number of years under his belt too. Neither of us has ever been accused of taking a case to lose. We are going to win this case."

The conspriacists do have a point, though.  After all, the Bush administration would have called on Olson to defend its proposed constitutional ban on gay marriage if the issue had reached the Supreme Court.  Olson has said that he did not support the ban, but never stated his opposition publicly.

So I'll repose the question above: what gives?

It would seem that Olson has made a conscious break with his political ilk and made a principled stand against what he sees as a violation of a marginalized group's constitutional rights.  Could it be that Ted Olson, a long-reviled figure in liberal and social progressive circles, is demonstrating the open-mindedness and acceptance that those same circles have long held up as sociopolitical ideals?

Could be. 

Or maybe Olson really is a snake in the grass, waiting to strike the gay marriage movement with a venomous bite just as it begins its march towards universal acceptance.

Or maybe Olson just wants to seem relevant again.

Whatever the case may be, and however the case might turn out, it looks like this diametric duo of attorneys will continue to annoy both the right and the left sides of the issue for the life of the lawsuit.

Which should be entertaining, at the very least.

See Also:
California Supreme Court Upholds Prop. 8, but Preserves Marriages that Already Occurred (FindLaw's Courtside)
California's Battle Over Proposition 8 and Same Sex Marriage Rights (FindLaw)
More on Ted Olson's federal lawsuit for gay marriage (The Volokh Conspiracy)
Gay Rights Make Strange Bedfellows (Above the Law)
Prop 8. Now what? The US Supreme Court? (The Huffington Post)

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