Former Former Bush Solicitor General Wants To Overturn Prop 8

Former Former Bush Solicitor General Wants To Overturn Prop 8


This was a bit of a surprise when I heard about it, but apparently Ted Olson has joined forces with the Equal Rights Foundation and they’ve just sent out a press release about yesterday’s decision.

Here are some key excerpts (.pdf) …

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.” […]

Today’s lawsuit argues that the California’s Constitution — as amended by Proposition 8 — violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply.

Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

  • Violates the Due Process Clause by impinging on fundamental liberties.
  • Violates the Equal Protection Clause of the Fourteenth Amendment.
  • Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
  • Discriminates on the basis of gender.
  • Discriminates on the basis of sexual orientation.

That’s a lot stronger case than I thought it would be, and maybe they’re right to challenge this one. But the key difference between Loving v. Virginia and this case is that racial identity is pretty much fixed, while it can be argued that sexual identity is not necessarily. Sure, we make sure folks can’t discriminate based on sexual orientation, but that doesn’t infer marital rights to those folks. Of course, then it gets into the idea that bisexuals should be allowed to marry whoever they want, and I’m obviously fine with that too. But there’s a difference and it will be brought up.

Also, common sense tells me that if the liberal CA Supreme Court voted against overturning Prop 8 by 6 to 1, does anybody think the US Supreme Court will overturn that? Seems highly unlikely, so they could be handing their opponents a very easy win. (Note: This case is different than the one the CA Supreme Court just decided. My apologies for the confusion, but it also means their case is MUCH stronger now.)

Regardless, it’ll be an interesting case and this could be a watershed moment for gay marriage…one way or another.

(h/t: Volokh)

  • Simon

    Justin, your penultimate paragraph misses the mark. The issue decided by the California Supreme Court (“CA SCOTUS”? “California Supreme Court of the United States”?) yesterday was a legal process issue of whether Proposition 8 was an amendment of or a revision to the California Constitution. A line of California caselaw stretching back to 1894 has drawn a distinction, and only the former can be adopted by the initiative process. The decision yesterday, therefore, held only that the character of Proposition 8 did not work a fundamental change to the structure of California’s government, a fairly self-evident proposition. Even activist judges can only do so much with a straight face. The deeper substantive issues – and more particularly, the federal constitutional issues – were not raised or in play.

    So understood, it’s obvious that the Supreme Court of the United States couldn’t overturn yesterday’s decision even if it wanted to. Yesterday’s decision involved a pure question of California law by the court with the last word on the meaning of California law. See, e.g., Michigan v. Long, 463 U.S. 1032, 1042-3 (1983); Fisher v. Jones, 83 F.3d 426 (1996) (“Because state courts are the ultimate expositors of state law, we are bound by their constructions and limited to deciding whether a conviction violates the Constitution, laws, or treaties of the United States”). Indeed, since the litigants in these cases have raised no federal issues in state proceedings, the US Supreme Court would lack jurisdiction to hear the case, see 28 U.S.C. § 1257. Jurisdiction could be created if the petitioners added federal claims to their cases, but the court would almost certainly refuse to hear a case comprised solely questions neither raised nor addressed below. See, e.g., F. Hoffmann-La Roche v. Empagran, 542 U.S. 155, 175 (2004) (declining to address arguments not addressed by the court below); Cutter v. Wilkinson, 544 U. S. 709, 718 n.7 (2005) (same) (“we are a court of review, not of first view”); Montejo v. Louisiana, 556 U.S. __, __ (2009) (slip op. at 19) (same).

    Olson’s separate litigation is another story. The Supreme Court of the United States has been on a collision course with this issue since Romer v. Evans and Lawrence v. Texas. At least in my own view, expressed here and elsewhere before, a straight line through those cases points directly to the conclusion that there is a five-vote majority on the court today (something unlikely to be changed by Sotomayor’s nomination) to support the Olson lawsuit claims.

  • Chris

    Simon, thank you because that’s exactly the point that i was going to make about the SCOTUS of Cali’s decision.

  • Simon

    Chris, you’re welcome. Sorry to nitpick, but the abbreviation “SCOTUS” is short for “Supreme Court of the United States” – there isn’t and lexically can’t be a “SCOTUS of California,,” there’s just the Supreme Court of California.

  • Justin Gardner

    Simon, changed the SCOTUS terminology. Thx for the heads up.

    Also, I thought Olson was appealing THIS decision. But it looks like you’re right. I’ll amend.

  • Jimmy the Dhimmi

    None-the-less, the comparison between Loving v. Virginia and gay marriage is not about race vs. sexual identity. It is about racial choice vs. gender choice.

    Currently, all homosexual Americans are eligable for marriage in every state of the union. They are just required to chose a partner of a different gender. Being gay, or chosing a gay person is not what disqualifies a homosexual relationship from marriage.

    Desegregating marriage in terms of race is necessary in the same way the country had to desegregate schools and public restrooms. That being said, if Olson is right in his logic, must we now desegregate classrooms and restrooms in terms of gender as well?