The times they are a changin'

[pecunium]

Ted Olsen (yes, that Ted Olsen, the guy who ran point on the legal team which got Bush appointed to the White House in 2000), is upset with the Calif. Supreme Court.

He not only upset with them, on legal grounds, but he's staging a legal challenge to Prop 8. A federal challenge. Of all things, given this court, an Equal Protection Challenge.

Bush Solicitor General, Ted Olson, explains why he's now for gay marriage

"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."

There's a lot in that paragraph. The most important part, to me, is this, "I also personally believe." He didn't couch it in some distancing phrase about laws, or the arc of history. He made a flat out declaration that this ia a moral wrong.

The cynic in me half wants to say he's doing this as a crafty piece of politics to get this before the court so they can uphold it.

But the hopeful, optomistic part says he's can't be willing to take the abuse this is going to get heaped on him (not just the immediate reactions from the right, but the secondary reactions from the people with whom he will be working. Bob Barr suffered from his working with the ACLU against the PATRIOT ACT).

This is big. If it gets traction at the federal level it's big too. Jerry Brown isn't going to be pursuing the defense against this with all the zeal Ted Olsen had when he was arguing cases for Bush (he was Solicitor general for awhile). Brown will do his job, but to the bare minimum.

Olsen, if he means what he says (and I have no reason to doubt him), will be a man on a mission. I can't imagine taking this public a stand, on so unpopular (with the people who were his natural supporters) an issue, if he didn't believe.

He's no slouch as a lawyer. I don't know how many quills he has, but he's no stranger to this court, which can't hurt should it get that far.

The world turned upside down indeed.

Comments

[packbat]

The irony is that we always wanted moderate/liberal Republicans to stand up and denounce the culture wars. To take their party back. But instead, we have a growing number of conservatives who are washing their hands of the religious right and its phobias.

I don't understand it, but I swear it brings tears to my eyes to see this ball begin to roll.

[phonemonkey.livejournal.com]

The cynic in me half wants to say he's doing this as a crafty piece of politics to get this before the court so they can uphold it.


This is what I think too. Right now, the Supreme Court consists of, and I can't say it better than Brad Delong, "Seven Republicans, only three of them attached to reality, and two Democrats". Even allowing for Sotomayer replacing Souter, that still doesn't look good. Ginsburg has cancer, Stevens is approximately three hundred years old, and nobody on the insane wing of the court seems to be going anywhere. I think it's going to be another Plessy v Ferguson if it comes up, and I think Olson knows it.

[kristine-smith.livejournal.com]

But it isn't even scheduled before the Court yet, is it? Have they even accepted it?

[pecunium.livejournal.com]

I don't think it has much of a chance to get to the Supreme Court.

Right now it's not even appealed into the Federal system. Until it get to the Circuit what the Supremes think isn't an issue. It really depends on how any actual appeal is framed.

[texaslawchick.livejournal.com]

They filed the complaint on May 22 and the motion for preliminary injunction yesterday. It looks like the hearing on the injunction will be on July 2.

Complaint: http://www.equalrightsfoundation.org/images/2009-05-22_Filed_Complaint.pdf

Motion for Preliminary Injunction: http://www.equalrightsfoundation.org/images/Preliminary_Injunction_5-27.pdf

I think that there's a passage in Lawrence that sort of set this whole thing up.

The statutes do seek to control a personal relationship that, whether or not entitiled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.

This, as a general rule, should counsel attempts by the State, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.

I don't think Kennedy was quite saying marriage, but I think he was sort of leaning in that direction. I think, though, that O'Connor being replaced by Alito changes the dynamic of the court pretty dramatically. She was in the majority of Lawrence. I don't really see him as a substantive due process kind of guy.

[pecunium.livejournal.com]

O'Connor being replaced by Alito changes the dynamic of the court pretty dramatically. She was in the majority of Lawrence. I don't really see him as a substantive due process kind of guy.

You don't?

Shocked I tell ya', shocked.

[fidelioscabinet.livejournal.com]

Well, damn.

Just, damn.

Of course, Olson bailed on Bush in 2004, so it may be that he has decided that his conservative principles are not the same as some other people's conservative principles, so to speak. Then again, phonemonkey may be right.

Given how long it can take for a case to get to the Supremes, though, a couple more vacancies could have appeared and been filled by then.

[calimac.livejournal.com]

There we go. Regardless of whether Olsen is being honest or prevaricating, he's making the point about equal protection which I was trying to make in the comment to an earlier post.

[texaslawchick.livejournal.com]

I'd be cynical if David Boies weren't also involved.

[pecunium.livejournal.com]

I actually believe him. Were I being cynical I'd say he teamed up with Boies to get cover, and make it easier to scuttle the whole thing.

But actually do believe him.

[vanmojo.livejournal.com]

Okay... so I am not crazy! I thought perhaps I was just off the reservation thinking this could be an elaborate form of legal rat-fucking.

I want to trust Olson and Boies, and if there's two attorneys who can get the attention of the Supremes by making a novel legal argument, or even just framing it in a way that makes it impossible for the Nine to look the other way, it's these two...

Oddly enough, it was my opinion from the get go that the procedural argument, vis "is this a correct amendment of the State Constitution?" was weak tea and not the right way to go. I have always thought this was going to come down to a question of due process and equal protection, and whether a majority has the right to single out a specific suspect group to de-certify those rights.

mojo sends

[pecunium.livejournal.com]

The decision to make a procedural argument was strategic. If it won, the issue was done. By making it a question of state law, there was no federal question.

Without a federal question the pro-8 side couldn't appeal it into the federal system, where this bench (which still had Souter, and is, apparently, strongly controlled in chambers by Alito/Scalia) was the one to end up with the case.

In a couple of years, should the court's makeup change, there might then have been a way to finesse a federal claim; in the hopes a more reasonable court was going to be petitioned to hear it.

This case changes the playing field. I don't know quite what to make of it, because Olsen, as well as anyone, has a good idea of how the justices reason. It's an interesting situation.

[jpmassar.livejournal.com]

Seems like a really, really, stupid thing to do.

About as stupid as, hypothetically, deciding to take a Roe v. Wade
to the Supreme Court as a pro-life advocate when your
brain was telling you it had an 80% chance of making abortion legal
everywhere in the US. (Not saying this was the case back then,
just drawing a hypothetical analogy).

Unless they know something we don't about the retirement plans of some younger
Supreme Court Justices, the end result of this case is very likely to
be a severe blow to equal rights. The right of the state to prohibit same-sex marriage despite the Equal Protection Clause will become enshrined by Supreme Court decision.

[cruiser.livejournal.com]

Two things:
1) A lot of folks in the gun lobby felt the same way about DC v. Heller.
2) Olson's a pretty darn good lawyer and probably has a better feeling for the odds than you do.
3) There's no guarantee that it will get to the Supreme Court

[pecunium.livejournal.com]

There are (as I read the court) some big differences.

1: The Gun Lobby believed Scalia, Alito, et al, when they said they actually believed in stare decisis.

2: I don't believe this court is all that faithful to stare decisis (and the verdict in Bush v Gore is, if nothing else, why). I believe the there are at least three members who look at a case and ask themselves how they can bend the law to suit their desires.

4: The track record of this court is that equal protection is non-starter for plaintiffs.

5: The only way this gets to the supreme court is that the circuit ruled in favor of same sex marriage/against DOMA.

If those happen I can't see this court making a decision in favor of same sex marriage.

[cruiser.livejournal.com]

See my point 2. Although your cynical take on it could also apply.

[pecunium.livejournal.com]

I covered your point to in the original post, where I made reference to just how often (as both a private att'y, and as solicitor general) he's been before the court.

I just don't think the present bench is composed of as many honest (in the judicial sense of looking at the problems with an open mind) jurists as are presented. Alito and Roberts blatantly lied when they were confirmed, and Scalia has a track record of finding convenient scraps of coverage to make the decisions he likes be the, "original intent" of the framers.

I am afraid Olsen isn't as aware of that as I'd like to think.

[cruiser.livejournal.com]

Bush Solicitor General, Ted Olson, explains why he's now for gay marriage

I'm not sure if I agree with the title on this one. Prior to this, had Olson ever said he was against gay marriage? Just working as Bush's Solicitor General doesn't say anything about his personal beliefs about much of anything, and I can certainly see a person being willing to toss a few principles into a box in order to take a 'one of the most significant jobs in your field' sort of position.

[pecunium.livejournal.com]

It's got nothing to do with Olsen's beliefs. It's got to do with what it does to his standing in the political faction he is a big part of.

[cruiser.livejournal.com]

I'm quibbling about the title - "now for" - the title of the article assumes that he used to be against it. I'm saying that unless he's ever publicly expressed an opinion against it, that's a crappy title.

[pecunium.livejournal.com]

You are being too granular. The completely different is that a name player in the "Conservative" movement is pressing a lawswuit in the interest of same sex marriage/gay rights movement.

The best we can see in the past is some folks being wishy-washy. Dick Cheney said he was for same sex marriage, but when his daughter being a lesbian came up, it was, "That's not fair to talk about."

It was also a combined reference to the overwhelming singlness of topic (at least as it seems to me) and a whimsical statement of topic change (by way of a Monty Python reference). The blog is a creation over time, not a set of single objects, post titles occaisionally reflect this.

[pecunium.livejournal.com]

Ted Olsen, as Solicitor General was the public face of the Bush adminitration in the courts. That administration was against same sex marriage.

He may not have personally held such a position, but this is the first time (in the five years since he left the service of that administration. He's had ample time to make such a statment, and previously hasn't.

(I was confused in the previous comment. I thought you were making reference to the title, because you used it in your comment; twice. As a title, given my presently large amount of content on torture, I thought I had used the Monty Python quotation).

So no, I am not convinced it was a "crappy" link name.