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

[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.