Gay Marriage's Odd Couple

Strange bedfellows unite for gay marriage fight

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    NEWSLETTERS

    Talk about odd couple. The two lawyers on opposite sides of the Bush v. Gore decision have united to champion gay marriage rights.

    That cliche about politics making strange bedfellows has never been more true. 

    Nine years ago, two of the country's most famous -- and wealthiest attorneys -- were on opposite sides of the most controversial political case of all time: Bush v. Gore. It was the case that correctly decided the 2000 presidential election , if you were Republican, and became an abomination of justice if you were a Democrat. Ted Olson was on the winning side and went on to serve as United States solicitor general in George W. Bush's first term. David Boies, who was the government's lead attorney in the '90s in the antitrust case against Microsoft, was on the losing side.

    Wednesday, they were on the same side, representing two same-sex couples in a federal lawsuit against California's Prop. 8.

    "We are two lawyers from opposite ends of the political spectrum who have come together to support one of the most important issues of our time," Olson told reporters. "[The case] is not about liberal or conservative, Democrat or Republican. We're here in part to symbolize that."

    Olson's role is rather significant.  He hardly needs the money, so he's clearly taking the case to make a political point of his own -- to his fellow Republicans:

    "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said.

    "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation." 

    The case will be heard July 2 in San Francisco. 

    Ironically however, the "strange bedfellows" approach is playing out in different ways.  Aside from superstar lawyers of different ideological backgrounds working together on the case, many pro-gay marriage groups are opposed to the Boies-Olson suit:

    The American Civil Liberties Union, Lambda Legal and other national organizations issued a statement saying they think the U.S. Supreme Court is not ready to rule in their favor on the issue.

    "In our view, the best way to win marriage equality nationally is to continue working state by state, not to bring premature federal challenges that pose a very high risk of setting a negative U.S. Supreme Court precedent," said Shannon Minter, legal director of National Center for Lesbian Rights.

    Those groups want to continue working at the state level -- either through legislatures or in state court challenges -- rather than risk losing in the Supreme Court.  In other words, these groups are adopting a more conservative legal -- and political -- strategy than George W. Bush's former solicitor general.  Would this challenge eventually end up in the Supreme Court?  Most definitely -- and having a guy who regularly argued the government's position before the high court wouldn't be the worst thing for the plaintiffs. 

    The Olson-Boies approach could also have major implications for the federal Defense of Marriage Act, passed and signed into law by Bill Clinton in 1996.  Ironically, a former Clinton aide, Chad Griffin was the person who approached Olson to sign onto the case.  DOMA allows states to refuse recognition to same-sex marriages performed in other states.  Could a successful federal challenge to Prop. 8 invalidate DOMA?  Quite possibly.Would that launch a national movement to amend the Constitution? 

    And on and on it goes. 

    Robert A. George is a New York writer. He blogs at Ragged Thots.