Theodore B. Olson, the U.S. solicitor general under Bush and his lawyer in Bush v. Gore, and David Boies, who represented former vice president Al Gore in that case, have joined forces to challenge Proposition 8 in federal court after this week’s loss in the California state court system.
A successful challenge would circumvent the need for a state by state fight on the issue. The Supreme Court has long dodged the question, even in its historic Lawrence v. Texas decision.
They are challenging the prohibition of same-sex marriage as a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution.
Olson stated” “For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals. The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”
While Olson and Bois view this as an optimal time, I would disagree. Coming so soon after the loss in the polling place, the timing maximizes the appearance of attempting to achieve in court what was denied by the voters. On the other hand, if you agree that gays and lesbians are entitled to such protection, the vote of the public constitutes a modern version of tyranny of the majority.
Notably, by the time that it went to the Court, Sotomayor is likely to have been confirmed and voting as an Associate Justice.
For the full story, click here.