Gay Rights Groups to Ted Olson: Thanks, but No Thanks

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Why gay-marriage backers don’t want the conservative lawyer to challenge Prop 8.

Thu May. 28, 2009 8:21 AM PDT

Former solicitor general and ultraconservative lawyer Ted Olson is a rock star of the US Supreme Court bar. He’s argued more than 50 cases before the high court during his career and won more than three-fourths of them. So on Wednesday, when he signed on to a lawsuit challenging the constitutionality of California’s Proposition 8, which bans gay marriage, he looked like the great white hope for a cause that’s had only mixed success in the nation’s courts. If anyone could prevail in this case, Olson could. So gay rights groups must be thrilled that he’s thrown his significant legal weight and conservative bona fides behind their cause, right? But they’re not—not at all.

The country’s major legal groups defending gay rights, including the ACLU and the Lambda Legal Defense and Education Fund, don’t think Olson is doing them much of a favor. They are upset about the lawsuit, in large part because they think it will fail. A loss could be a major setback not just to the gay marriage movement but to other established gay rights governing adoption and foster care, employment discrimination, and other matters. Pushing the case to the Supreme Court, they contend, could do serious harm.

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When the lawsuit was announced Wednesday, some at the press conference raised these concerns and asked whether the lawsuit might be premature, a question that prompted one of the more mind-boggling scenes in civil rights history. In response, Olson—Ted Olson!—argued that justice delayed is justice denied. This put him to the left of the ACLU on one of the nation’s most contentious social issues of the day. He acknowledged that some may disagree about the timing of the suit. But he explained that when gay people came to him and said that their constitutional rights were being violated, that they wanted to be married and have the same rights as other Californians, he could not, as a lawyer, say, “Why don’t you just wait another 10 years, 15 years?” He added: “We think they’re right. We think their constitutional rights are being denied, and we’re going to help them achieve that equality.” Basing his arguments on those that prevailed in the famous Supreme Court decision Loving v. Virginia, which overturned a ban on interracial marriage, he contended passionately that the time for this case had come, despite what ACLU attorneys might think.

A spokesman for the American Foundation for Equal Rights, which is funding the lawsuit, wouldn’t say who recruited Olson for the effort. But it’s clear that whoever is backing the effort put up a boatload of money. The spokesman said that Olson and his co-counsel, David Boies, who represented Al Gore in the 2000 election litigation, are handling the case through a mix of paid and pro bono work donated by their firms. Rumor in Washington legal circles is that Olson commands upwards of $1,000 an hour for his Supreme Court work, meaning that even if some of his work is pro bono, his time on this case will cost a small fortune. While Olson and company have so far refused to disclose who’s paying for their work, the PR firm running the media operation, Griffin | Schake, has close ties to Hollywood liberals like Rob Reiner and Jerry Zucker. Nor will the foundation make public all of its board members. Chad Griffin, one of the partners in the PR firm and so far the only disclosed board member of the foundation spearheading the lawsuit, worked in the Clinton White House. It sure looks like the work of the liberal elite.

But conspiracy theorists on the Web—where else?—are already postulating that Olson has signed on so that he can take the case to the Supreme Court and lose, thus wrecking already well-established gay rights everywhere. But at the press conference, Olson disputed the notion that he was a saboteur. “I hope that people don’t suspect my motives. I feel very strongly that this is the right position,” he said.

Still, you can understand why some liberals might be suspicious. Olson is the godfather of the conservative legal movement, having been in the room for the founding of the influential conservative group the Federalist Society. His former law partner is one-time independent counsel Ken Starr, who argued in favor of upholding Proposition 8 before the California Supreme Court in March. Olson represented Ronald Reagan during the Iran-Contra investigation. A prominent Clinton-basher during the 1990s, Olson helped prep Paula Jones’ lawyers for their Supreme Court appearance that resulted in her sexual harassment lawsuit proceeding against a sitting president—and that ultimately led to the whole Monica Lewinsky debacle. Olson was heavily involved in the "Arkansas Project," Pittsburgh billionaire Richard Mellon Scaife’s effort to funnel nearly $2 million through the American Spectator magazine to pay private investigators to dig up dirt on the Clintons. (The project was launched from Olson’s law firm.)

As one of the nation’s preeminent litigators, Olson has used his formidable skills to defend (unsuccessfully) the Virginia Military Institute’s decision to exclude women and to undo affirmative action policies in publicly funded law schools. And of course, he represented George W. Bush during the 2000 election fight that went all the way to the Supreme Court. This history makes his presence in the anti-Prop 8 litigation all the more curious.

Nonetheless, at Wednesday’s press conference, he made the quiet argument that Dick Cheney should have when questioned about his lesbian daughter during a vice-presidential debate. When asked whether his decision to take the case had been inspired by a close friend or family member who was gay, Olson said, “I suspect there’s not a single person in this room that doesn’t have a friend or family member of close acquaintance or professional colleague and many of them who are gay. And if you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally like the rest of us and not be denied the fundamental rights of our Constitution.”

Olson was put on the spot about his association with conservative organizations, and he insisted that he had never been a part of any organization that he considered anti-gay, which is sort of disingenuous considering that he worked for both Ronald Reagan and George W. Bush, who were both anti-gay in their policies—especially Reagan, who studiously refused to address the AIDS epidemic for years as thousands of gay men died. Still, a review of the public record does indicate that Olson has not joined the right’s anti-gay efforts.

In 2001, Salon reported that Olson worked on the Romer v. Evans case in 1996, assisting those defending a Colorado anti-gay rights ballot initiative that was ultimately overturned by the Supreme Court. But lawyers involved in that case say that Olson had nothing to do with Romer, even though many of his conservative colleagues like Robert Bork did. And Olson tells Mother Jones that he played no role in that legal battle.

He has told reporters that he has long privately supported equality for gay couples. Wednesday's press conference certainly qualifies as a major coming-out party. Olson's drive to fast-track gay marriage to the Supreme Court may make the ACLU and others nervous, but if someone as conservative as Ted Olson is ready to get up in front of the cameras and say the issue’s time has come, perhaps it has.

Update: Read more about Ted Olson and his strange bedfellows here.

Stephanie Mencimer is a staff reporter in Mother Jones' Washington bureau. For more of her stories, click here.

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Comments

It's stupid to oppose the

It's stupid to oppose the help from this fine attorney. Many of you on the left continually make the fundamental error of substituting your misrepresentation of the ideas of those on the right for our actual ideas. Except for the fundamentalist wing of our party, most of us are actually libertarians who find common cause with you on the State intrusion into lives of gays...think about it...we resist State intrusion everywhere..in places you despise our opposition to it in fact. Leaving that aside, it is completely consistent for principled members of the non religious right to side with you folks on this issue. you're losing out on a powerful assistant by turning down this guys expertise.

MtnGoat, I don't think it's

MtnGoat, I don't think it's mistrust of Olson that is driving the worry here; rather, it's that despite the apparently good intentions of Olson and David Boies (why is Boies left out of this article, by the way?), this could backfire. A negative U.S. Supreme Court decision could set back the same-sex marriage movement for years.

Gay Tights Groups to Ted Olson: Thanks But no thanks

With respect, MtnGoat, we "on the left" have been the victims of far more such "misrepresentation." In any case, even you must admit that gay rights have, more often than not, been vocally and legislatively excepted by prominent self-described conservatives from that opposition to State intrusion. As far as Mr. Olson is concerned, it's not so much his involvement (although his history is troubling), it's the fact that it's coupled with what many of us consider poor timing (I also can't help noting that the one case cited above in which he represented what could be construed as the "liberal" position, he lost, for what it's worth). In a perfect world, we wouldn't have to worry about the ethics/politics/personal views of a duly sworn federal judge - or attorney (nor would the case even be necessary). But the fact is, given the current makeup of the federal courts and the records of many of its sitting judges, we do. Mr. Olson may, indeed, be a valuable ally...at the right time. Many consider this action premature, and therefore question the judgment behind it.

Say what?

I loves me them gay tights.

I agree completey

tagged as: 
I've been a thorn in the side of the marriage equality folks in my state because I keep calling them on their timidity regarding the courts. My cousin is studying law at the moment and even he sees it as a Constitutional issue, that our Article 1 Section 2 rights under the RI Constitution are being denied as I type this. A justice in the Superior court so much as told the parties in Ormiston v. Chambers (RI's first gay divorce case) that if they were to bring the case before the court as an abuse of the Constitutional rights the courts would have no choice but to overturn the Family Court Act of 1967. You know what, it took the Supreme Court to undo racism with Brown v. Board of Education (It still exists but not as overtly and openly as it was back in the 1960's!) or to grant the right to abortion, or to end the silly miscegenation laws (VA v. Loving). It's going to take the U.S. Supreme Court to make sure we ALL have the same rights.

It should be handled in State Courts not Federal ... please !!!

Let these guys donate their time to LAMBDA and ACLU, rather than hog the limelight.

I am confused

by this passage in your post: "A loss could be a major setback not just to the gay marriage movement but to other established gay rights governing adoption and foster care, employment discrimination, and other matters. Pushing the case to the Supreme Court, they contend, could do serious harm." This lawsuit challenges a constitutional ban on gay marriage in one state. Assuming the Supreme Court rejects the lawsuit and upholds the ban, how would that wreck established gay rights in other areas like employment discrimination? Something like 30 states already have constitutional bans on same-sex marriage, right?

A broad ruling could be devastating

The problem is not that Prop 8 would be upheld. The problem is HOW the conservative majority on the Court might do it. In a worst-case scenario, the Court would issue a broad holding that it is perfectly constitutional to deny rights to gays because gays are not a protected group under the Fourteenth Amendment entitled to any heightened scrutiny (i.e. they are not like race, sex, national origin, etc.). The law is very unsettled in this area right now, and a broad holding like that could do all sorts of damage in many other domains, making it harder for gays to gain protection in other fundamental-rights areas -- especially those having to do with family matters, like adopting children, in any state. Bowers v. Hardwick provides a lens in to what gay groups and liberals fear. It upheld a sodomy law in the 1980s. In theory, the case was only about criminal sodomy laws. (It was overturned recently in Lawrence v. Texas). But until it was overturned this holding provided a basis for bad laws and discrimination against gays in zillions of other fields. An employer who fired a gay employee could argue in court, "I'm not violating equal protection -- I'm just discriminating against a group whose conduct the Supreme Court has said it's acceptable to criminalize." Legal holdings of Supreme Court cases often have many effects outside their immediate domain.

I agree with your overall point, but...

I probably should preface this by saying I am not a lawyer, so maybe I am reading this wrongly, but I see nothing in the Fourteenth Amendment about "protected groups." It prohibits states from abridging "the privileges and immunities of citizens of the United States"; defines "citizen" as any person born or naturalized in the United States and subject to its jurisdiction; and prohibits states from depriving any person (citizen or not) of "life, liberty, or property without due process of law" or denying any person "the equal protection of the laws." Nothing about some groups being protected and others not. "Protected groups" are largely the creation of civil rights legislation. There is in the Fifteenth Amendment a protection extended to certain groups, but it only applies to the right to vote, prohibiting the US and every state from denying or abridging that right to any citizen of the US "on account of race, color, or previous condition of servitude." Note that there is nothing to prohibit denying a citizen the right to vote on account of sex; that is why it took a separate amendment to secure that right to women.

"protected groups"

@slb - I mistakenly posted my reply to your comment further down the page instead of here. It's lower down with the title "protected groups"...

The concern here is that

The concern here is that some of the justices on the SJC, (i.e. Thomas and Scalia), would have completely closed minds to any arguments for equal rights for gay Americans, no matter how well the case is made. It is tragic that such people reside on the highest court in the land which Americans count on for true fair interpretation of the law and defense of all Americans. If either of them should by chance meet an early demise during Obama's term(s), the case would at least stand a fair chance.

Problem with the status quo

The same people who lost the election and lost the Prop 8 court battle are telling us this is premature. These are the same people that told us we should not be visible during our own campaign. Why are we still following these people. Kors should step down. Minter should step out of the way. We appreciate their efforts, but we need new tactics. The fact is, the CA Supreme Court decision is already devastating, not just for us, but any minority. Sure, we might win back marriage in the next election, but then what? That ruling leaves too many things open to the tyranny of the majority. The only way to overturn the ruling is by the US Supreme Court. We're not going to get full equality from all the States without the US Supreme Court bringing many of them along kicking and screaming. More conservatives are seeing the value in same-gender marriage. We shouldn't be so quick to judge the Supreme Court justices. Read Scalia's dissent on Lawrence vs Texas, even he put a glimmer of hope in there for full equality. People act like the USSC can overturn the marriages in the States that already allow it. The worst case it the Supreme Court rules it's a State's rights issue, which just means we continue what we're doing now. But if the USSC rules in our favor, all States will recognize our marriages and they will be protected from future ballot initiatives.

I'm not certain that a

I'm not certain that a Supreme Court case is the best option here, but if it is going to be tried turning down help from Ted Olsen would be incredibly foolish. Further, assuming that an opinion in favor of Prop 8's Constitutionality from Thomas/Scalia is both lazy and rash.

Thomas/Scalia favoring Prop8 prescient and erudite.

If you've actually read the opinions of the SCOTUS members and followed their reasonings and biases, it's a signed and sealed certainty that Scalia/Thomas would rule for state's rights, favoring Prop8. In fact, Scalia/Thomas/Roberts are a certain troika that almost always votes in the same block. The right wing position on SCOTUS has always been in favor of state's rights to legislate as they see fit. The only exception being the horrendous Bush v Gore decision in which justices like Scalia and Thomas defied their up until then 'principled' stance of state's rights to reveal what partisan hacks they are that they should choose to rule against Florida's right to recount as ruled by the Florida SC. Otherwise, Scalia ALWAYS upholds state's rights using his constructionist judicial theory by interpretating the framer's 'original intent' as the reasoning behind his rulings and has ALWAYS WITHOUT EXCEPTION ruled for the republican cause. Thomas, being the republican shill that he is, also has ALWAYS WITHOUT EXCEPTION decided in favor of the GOP position. So your claim that the assumption of certainty that they would rule in favor of prop 8 is lazy and rash makes you appear naive and dangerously foolhardy.

Uh, no.

For someone so smug, you are exceptionally uninformed. You may wish educate yourself further, and I'm glad to help. Research the following two cases: Virginia v. Black and Gonzales v. Raich. They put paid to your silly rant. As for Bush v. Gore, I presume you realize that by your logic the four justices in the minority went against all their principles to get their states rights groove on to support the Democratic position.

A trap?

"naive and dangerously foolhardy" .... or, perhaps, devious. It is not a stretch to believe that this offer is indeed a trap set in hopes of using the current right-wing majority on the SJC to set marriage equality back decades. This is too important and too hard-fought to take that chance. Better to wait for one of the wingers to leave and be replaced by at least a moderate, someone with a mind not rigidly closed by right-wing ideology.

Watch out...

for those black helicopters.

I share the same idea about

I share the same idea about Ted Olson and this being a trick/trap/Trojan Horse. I can remember both Ted AND HIS LATE WIFE (Barbara I think) coming after Clinton like gangbusters on a par with Ken Starr!! When you consider and review his record, and look closely at what he stood for and probably still stands for, this defense of gay marriage is waaaaaaaay off base for someone like him. Big money could be behind this action from either side. The right-wing patriot type/religious gay haters could see an opportunity to get it before the "Supremes" hoping and praying it will be banned and struck down since the court is quite conservative. If that happens, Ted Olson loses NOTHING. His "backers" will be disappointed of course, but all he has to say is that he tried. If it is "liberal Hollywood elite" bucks backing him, maybe he is doing it for the money. Consider this: I don't see the "Ted Olsons" of the world supporting gay marriage. Whoever is backing him has chosen him because he is familiar with the SCOTUS in terms of legal argument, and he is not involved in any anti-gay activism which allows him to "cloak" himself. I strongly hope I am wrong about his motives. But when you do the math and look at his "record", it adds up very very wrong. It's a win/win situation for him even if he loses. If he should prevail, and the court rules against gay marriage, that's it. The states--basically out of it and the law becomes the law. It could well be Pandora's box wrapped up in pretty paper with a pretty bow.

Supreme Fear

When Obama started his run for President many people couldn't believe a black man could be elected President. It was hard for him to get broad support initially because of the fear he would lose. Ted Olson and David Boise face a similar concern from the Gay Community that have been working slowly state by state to win Same Sex Marriage civil rights. If they lose the Gay Civil Rights movement would be set back decades. But their is a good possibility that they could win a 5/4 Supreme Court Decision it they get Justices Kennedy and Stevens, Breyer, Ginsburg and Sotomayer.

Supreme Fear

That's a BIIIIIG "if," Boboc, and if I had my 'druthers, I'd rather not risk it just now. Judicial climate too uncertain, stakes too high. My partner and I have been together 28 years, and I turned 56 in April. I'd prefer not to endure the decade or two wait a SCOTUS setback would entail, or that I'll even live long enough.

Spelling

How about if we get off to a good start by spelling her name right? S-O-T-O-M-A-Y-O-R.

Do we want OUR version of Plessy v. Ferguson??

I'm not suspicious of Ted Olson's bona fides -- I'm downright disbelieving of them. For the first known time in his career, Ted Olson plans to support the rights of the public against the power of his conservative-to-totalitarian friends? We are supposed to believe that somehow the ONLY part of their agenda that he doesn't buy in to is equality for marriage? There are very good reasons why, very intentionally, supporters of equality have been diligent to keep court cases restricted to state-only issues, knowing how the federal courts, especially the Supreme Court, have been rigged. And, given his shameful work in getting the U.S. Supreme Court to appoint George W. Bush president, in explicit contradiction to state-only issues, Ted Olson is extraordinarily aware of this. And he is certainly aware that the Supreme Court today is even more explicitly hostile to rights not specifically spelled out than was the Rehnquist court. If Olson had REALLY wanted to be helpful, he could have helped in filing a brief before the California Supreme Court. Or, he could contribute cash towards the repeal efforts. The risks of loss in federal court are far too great for anyone rational to trust them to someone who has never shown any positive interest in the rights of average Americans before. This is the point where the scary music plays in the horror film to alert the unsuspecting victim not to open the door where the psychopath or sociopath is lurking. And we KNOW who the sociopaths on the Supreme Court are.

"protected groups"

@slb - equal protection analysis under the Fourteenth Amendment is far more complex than simply parsing the words of the Amendment itself, as you have done. The courts have developed a tiered approach to analysis in which different "levels of scrutiny" are applied depending on whose rights are being infringed and what rights are involved. At the lowest level of scrutiny, the government need have only a "rational basis" for the law being challenged. Virtually any reason provides a "rational basis," and the courts never strike down laws considered at this low level of scrutiny. The courts apply heightened scrutiny to laws that infringe fundamental rights of "suspect classifications" – also referred to as "protected groups." For suspect classifications like race and religion, the courts apply "strict scrutiny," which requires that the law be based on a **compelling** government interest, be narrowly tailored to achieve the goal and impose means of achieving the goal that are the least restrictive of people's rights. Courts very often strike down the law at issue under strict scrutiny. For quasi-suspect classifications like those based on sex, the courts apply "intermediate scrutiny." The danger that JR referred to is that this right-wing Supreme Court might very well hold that sexual orientation is neither a suspect classification nor a quasi-suspect classification (i.e., LGBT people are not a "protected group") and that government action infringing on LGBT people's rights is therefore not subject to intermediate or strict scrutiny. If the Court doesn't apply heightened scrutiny and applies only the "rational basis" test, the Court will inevitably uphold Prop 8. Worse, the Court's could explain it's rationale so broadly that it could serve as a get-out-of-jail-free card for every anti-LGBT government action under the sun.

Ted Olson is great lawyer

Ted Olson has proved to be one of the best lawyers before the Supreme Court. If he were to be successful arguing for gay rights it would be historic and would yeild him acclaim and surely a place in history. I can't subscribe to the idea that this high profile attorney would take a case to sabatoge it.

Fate

The reality is Ted Olson and David Boise have filed a lawsuit. I think our fate is in their hands now.

I question the motivation by

I question the motivation by Gay Rights groups. They probably don't want Olson et. al. to advocate for gay rights cuz should he win - it'll show how *useless* they are. We need some *effective* gay rights orgs - to represent us. .

new leadership

you want new leadership? steer far away from EQCA and head straight for www.couragecampaign.org The Courage Campaign is the most organized, well run, bottom up organization to come along in California in a long time. Thank you Courage!

What is the point of taking things one step at a time?

tagged as: 
"Gay rights activists" who criticize Olson for filing this lawsuit should sit down and shut up. Who ever got anything from being nice and taking things one step at a time? My husband and I vote for making as much trouble as possible on this. If we lose this lawsuit, file another one and another one and another one. Keep filing lawsuits until either the heterosexuals in charge of this monkey parade give us equal rights or we bring the judicial system to its knees with lawsuits! I don't want to wait until my grandchildren are marrying age to get full marriage equality, I want it NOW. Not tomorrow, not next week, N*O*W. Good for Olson for ignoring the legal minuet obsessed "gay activists" who would gladly wait until the last homophobe in Orange county is all comfy about gay marriage before putting in front of the Court. I'm for making the SCOTUS Justices, the Congress and our cowardly hiding in the bushes and shaking President deal with this issue every day and confront their deepest principles one protest and one lawsuit at a time until they simply can't endure it another minute. That is the ONLY way we're going to get full marriage rights in this country. Time to get cracking. What is the matter with "gay rights activists" anyway? Ten years ago, a man of Olson's stature woudln't have been able to be in the same room as my husband and I - and now he's picking up our standard and running with it. He's the one making trouble and calling our leaders on the principles that they espouse (pun intended) while they push us out the back door. We should be grateful that such a man would put his principles ahead of his politics and do the one thing that we should have been doing all along - putting a bit of stick about. Well behaved gay people are easy to ignore. Time to be less well behaved.

"If we lose this lawsuit, file another one and another one...."

I fear you don't understand the realities of having a case heard before the Supreme Court. If the issue fails before the court, it is unlikely it will be reheard within our lifetimes because it will then be considered settled law. I.e., it is not successful strategy to continue throwing the same issue at the court hoping it will eventually stick.

Why don't you go work for abortion rights or ending DADT?

I appreciate your passion but the tactics you recommend are worse than a bull in a China Shop. And I don't think President Obama is afraid of anything. I trust him far more than you.

Realities?

I don't understand the realities? Please. Your thinking is simplistic and it's just not supported by the facts or the history of the court. The chances that the Court would rule on the whole body of arguments for Same Sex Marriage are so remote as to be about the same probability that the Rapture will happen during oral arguments. The Supreme Court will only likely rule on the narrowest principles in the case if they don't dodge the whole issue altogether as the California Supreme Court did. If the 14th Amendment argument doesn't work, switch to Full Faith and Credit. If that doesn't work, switch to due process. If that doesn't work, find something else. Mix and match and make them confront every single one of their deepest principles and force them, if they insist, to undo the whole edifice of constitutional law to keep their precious discrimination on the books. Eventually, they will tire of the battle and resolve the issue. If they don’t, we should just keep fighting and fighting and making it crystal clear that we aren’t giving up EVER. While that happens, we'll prove that we actually have some passion for the rights we are seeking – something sorely missing from the equation thus far. Sometimes we gay people are so bloodless and logical about this that many heterosexuals just don't think we really want what we want or they believe that our reasons for wanting rights aren't that we passionately believe that we are entitled to them, but that we are working some strategic angle. For most of us gay people (read - NOT activists) this isn't some legal case we are trying to win - it's our lives. Every day I live this problem when my husband and I try to negotiate the legal thicket created by these people. We were married in California on June 16th, 2008 and now live in a red state where our marriage isn't legal. I'm tired of getting told by people not worth my time that the man I married "isn't" my husband because one of these stupid and manifestly unconstitutional laws give them leave to act like reptiles. These laws are often the product of some religious nut bag politician who can't manage to spend 30 seconds reading the damned constitution or manage to wrap his pea brain around the a simple legal distinction between HIS religious beliefs and MY right as a US citizen and veteran to be treated equally under the law. Even worse are the numb nuts that think that any of the founding fathers thought that "the people" voting away INALIENABLE rights in a popular vote initiative would be a good idea. Ignorance and stupidity wash over this stuff like a tsunami and this is one MARRIED homosexual who is sick to death of waiting for all the people in this country to get all sentimental and comfortable with me and my husband before we agree together to send some legal nit picker hat in hand to the Supreme Court to ask finally for the rights we should have NOW. Screw the activists and legal beagles, screw the lawyers who think strategy and can't manage to get in my shoes. Screw THEIR tidy organized judicial system. If our government wants to discriminate, I want to be free to use every means at my disposal (legally) to gum up their system and render their orderly legal system a dim memory. You should know that history should tell you that when educated resourceful people like me start to believe that they don't have a stake in government, we stop giving a crap about whether the system works for the rest of you.

Like it or not, your frustration will not trump legal realities.

Unless your "educated resourcefulness" includes a legal education and practice at the appellate level, I submit you pretend knowledge you don't possess. Olsen is basing his case on the legal theory that denial of the right to single sex marriage violates the 14th Amendment. There is no way to decide that theory "on the narrowest principles." The principle is 14th Amendment rights as applied to single sex marriage, nothing less. Your rant about how other "people [are] not worth [your] time," and do not rise to your level of "educated resourceful[ness]" overlooks the possibility that there are many people, myself included, with more legal knowledge and experience. Do you honestly believe your "educated resourcefulness" places you in a better position than top tier ACLU attorneys to assess the justiciability this matter? Your frustration (and arrogance) will not change the realities of the federal court system. I'm on the same side of this issue as you. However, it's unrealistic to believe that the Supreme Court will hear case after case until finally arriving at a decision you want. Olsen's case, broadly based upon the 14th Amendment, will likely preclude any other case based upon the same theory for some time to come. I'm sure your "educated resourcefulness" includes the knowledge that the Supreme Court hears only the handful of cases it chooses from approximately 10,000 petitions it receives each year, and that the court is very reluctant to disturb stare decisis. Ask yourself why the court, which has been conservative for some time now, has not reheard the Roe v. Wade issue. As you mull over how intelligent you are, you might want to ponder this question: Why is Olson, an arch-conversative, pressing to have his case heard before John Roberts' health fails, providing Obama the opportunity to appoint another moderate to the bench?

Activist vs the same thing that hasn't been working

For a person who styles himself as a legal expert, you've made some very innacurate assumptions and then argued those assumptions as if they are demonstraged truth. You don't have any idea of my background or level of education in constitutional law. This is a perfect example of what I was talking about. The people who have been sheparding this issue through the courts are all about their assumptions and their own little rice bowls and never about fighting the basic issue. You appear to be more invested in the process and the sytem than you are in getting the rest of us marriage rights. You said that once the court rules on the 14th Amendment issue here, that is it. You are a legal expert? Have you ever heard of Brown v Board of Education? That case overturned a previous body of Supreme Court decisions. You are mistaken in thinking that the Supreme Court can only decide on the 14th Amendment issues here in the broadest way. Usually the court likes to pick away at the corners and edges of a big issue with opinions that leave open other avenues - often other arguments that apply to the same constitutional principle. Statistically, that is exactly what the court will do and therefore the risk is worth it - NOW. However, it's more important to realize that the court is acutely aware of how their opinions can have far more far reaching consequences than just for the issue at hand. To argue same sex marriage on 14th Amendment grounds means that the court will be faced with watering down a basic right that is critical for all Americans just to preserve same sex marriage. Given that, the court will either find a way to nibble at the edges to limit the effect or give the principle more weight than their prejudices. Of course they could side step the issue like the California Supreme Court has - but no one really think that opinion will stand for very long. Heck - it's self contradictory so which part of the opinion will actually hold sway? Let's sue and find out. I recall distinctly that many many gay activists like you were highly critical of bringing the Romer (Colorado Prop 2) case before the court for the same reason. You were wrong then and I suspect you will be wrong again here. Romer was put on the table and it resulted in a very fundamental advance for us - the principle that a state cannot place a discriminatory law on the books just because a majority of the people in that state don't like the group involved. Was there a single gay rights case before Romer that used the word "animus" to characterize one of these awful popularity votes? Without Romer we wouldn't have a chance with Olson's case, but with it, we do because it involves the same sort of argument. The people of California voted to strip marriage rights from same sex couples for no other LEGAL reason than they just don't like gay people. The Supreme Court rejected as specious every single one of the arguments that the proponants of the proposition used to justifiy it. The only argument that is left is that the majority of people in California just don't like us - and that, my friend is not a legal reason to pass a law and that is settled law - no thanks to the legal gay activists who were terrified that Romer would go the other way. Simply put - you and people like you are just not willing to shoot high enough and legal nit pickers won't get us where we need to go. It's time NOW for us to place this issue in front of the court and make our arguments in the strongest possible way. If we lose, we should keep at it. The court can't ignore the truth of this forever. To do anything else is just to give up and accept injustice for nothing but stategy. How can that be anything but contemptable?

Clarification

I made a logic leap that may be difficult for laypersons to follow: If the court decides single sex marriage is not protected under the 14th Amendment, narrow questions regarding single sex marriage will be moot. The court will simply refuse to hear such narrow questions on the ground that single sex marriage is not constitutionally protected anyway, thus there is no justiciable controversy for the court to decide. Following a negative decision based upon a 14th Amendment argument, a petitioner will need to urge that a bar against single sex marriage violates a *separate* fundamental Constitutional right. That does not mean the 14th Amendment issue will *never* be reconsidered, but court history suggests it will likely be a long while.

Rod Tanner's Rice Bowl

Gosh Rod - we are all just so discombobulated by all this legal mumbo jumbo. Look, my friend - the history of the Court is resplendant with instances where the arguments were grand and sweeping and the opinion from the court limited. I don't think the Supreme Court has the stomach for making a sweeping exception to the 14th Amendment even if it only applies to gay people. The Court is aware that there are five states now that offer legalized same sex marriage. The Court is aware that public opinion is in flux and changing in our direction. They may not conclude that the time is ripe for jamming same sex marriage down the throats of our friends in Mississippi, but they aren't going to slam the door shut either. They might give us a little and take away a little. Our point is that to win the hearts and minds of PEOPLE we have to stop making bloodless calucations and engaging in stategic exercises at the expense of justice. Our cause is one of justice. It's the right thing to do and while we spend all our energies nit picking through the bloodless details we leave all the passion on the table to be picked up by the relgiious right. Time to fight them on the same basis as they fight us. They have been successful in using passion to sway judges - leaving them with enough emotional cover to act unjustly. How can you not see that?

Suddenly a gay rights activist?

I think Olson is rushing to SCOTUS because he wants the case settled (and lost) before Obama gets to appoint a second justice (or a third). The strategy seems to go with the court that the conservatives put in place before the new regime gets to install more liberal judges and making approval of gay rights certain. By the way,I have heard a lot about LGBT activism but it mostly seems to benifit the L's and the G's and leave us T's off in the cold. Again and again I have seen efforts to recognise that trannies have rights too sacrificed for the sake of the "Ls" and the "Gs". In Massachusetts when they passed the gay rights bill they left us "T"s out. The legislature is still debating as to whether we are actually people or not. Now recent scientific studies suggest that intersex conditions including transgenderism may be the result of teratogenic conditions induced by exposure to endocrine disrupting agricultural chemicals, therefore unlike the lesbians or gay men, trannies have a medical condition needing treatment. This is denied us still or practitioners exploit us terribly for their own personal gain. If Mr. Olsen really has had a change of heart, let him sue for US.

What some people fail to

What some people fail to understand is - one doesn't 'take his case' to the Supreme Court... The Supreme Court *decides* whether to hear a case. And they only choose a select few each year. Currently there are a mish-mash of state laws dealing with the issue of same-sex marriage (SSM) ... same-sex marriage allowed, same-sex marriage prohibited, Domestic Partnerships but not SSM, Civil Unions but not SSM etc... People & families move from state-to-state all the time... eventually (soon) - jurisdictions won't be able to legally handle the issue until the Supremes decide once and for all. The time is now! .

Same-Sex Marraige?.?.?

Best way to put and end to this is -.- the first head supreme court challenge.....it takes a two thirds majority to alter or ammend the Constitution which I do Not Believe Will Ever Happen.... ... .....Take your best shot and put it to rest for the next huindred years.....aka bring it on

Ted Olson

Another example of a smart, fearless article made suspect by Mother Jones' tobacco ties. visit boycottmotherjones.com

At the Mercy of Mob Rule or the Rule of Law?

California Supreme Court’s Chief Justice Ron George said, “In a sense, petitioners’ and the attorney general’s complaint is that it is just too easy to amend the California constitution through the initiative process. But it is not a proper function of this court to curtail that process; we are constitutionally bound to uphold it.” Therein is the pitfall of a pure Democracy, which the California State Supreme Court has both illustrated and upheld, but which does NOT, repeat NOT, characterize the actual system of governance that is instituted by the U.S. Constitution: a Republic. Don't get me wrong: I'm all for working to enlighten minds, not just over the next year but at all times, about how sensible, righteous and just it is to have marriage be accessible to any couple desiring it. However, this endeavor, in my opinion, should be undertaken more as supplementary to and supportive of the real FIGHT. The U.S. Constitution guarantees that there are certain rights and liberties, that are “INALIENABLE“, meaning no citizen can be separated from those rights and liberties, and that among these inalienable rights is the right to “Life, Liberty, and the Pursuit of Happiness” for each citizen. Further, the 14th Amendment to the U.S. Constitution guarantees that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The clinching fact about our Republican system of government is that it provides that the majority may not infringe upon the inalienable, immutable rights and civil liberties of the minority. What has happened to the California gay community over the last year, the 'mob rule' overthrow of a constitutional liberty that had rightfully been adjudged as innate with homosexuals, is testimony to the truth that we should refuse any longer to be lulled into a reliance upon a PURE Democracy, and is demonstrative of why the “Founding Fathers” so wisely instituted a REPUBLICAN form of government, where the *Rule of Law* prevails over any majority opinion as those laws serve to preserve, protect, and to defend the inalienable, immutable rights of every citizen. The question that now begs to be answered is this: Is a state constitutional prevention of same-sex marriage a *violation* of the basic human rights and civil liberties GUARANTEED as inalienable and immutable by the highest Law of the Land, the U.S. Constitution? If we are to expect and demand that state governments honor not just these basic premises enshrined in the U.S. Constitution but also the U.S. Constitution’s 1st Amendment guarantee of the separation of Church and State, if we are to insist that any ban on marriage between any two human beings based upon religious prejudice is tantamount to instituting a THEOCRACY, then we MUST JEALOUSLY *guard* the basic structure of that governance originally instituted by the Founding Fathers and that is clearly and soundly represented by the U.S. Constitution and the Bill of Rights. If we want to pursue activism against state bans on gay marriage whether brought about by ‘mob rule’ or state-level legislative action, then fully and finally we should revisit the enduring libertarian standards embedded within the U.S. Constitution and accept our true and abiding HERITAGE as citizens of the Republic of the United States wherein reigns the constitutional Rule of Law and fight against PURE Democracy! I say we should take up the courage to insist upon our Constitutional rights, not as a grant at the pleasure of any governing body, but as a fact of our existence because we are ALIVE. The 10th Amendment to the U.S. Constitution affirms that it is the citizens of the United States that *extend* governing privilege to the three branches of the Federal Government in order that we may secure the immutable rights and civil liberties guaranteed to us by the U.S. Constitution: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." I say we extend our moral, intellectual, and financial support to Attorneys Ted Olson and David Boies as they take on what has devolved into the Behemoth that dares to presume to stand in the way between us and the Founding Document that already guarantees our very existence as *first-class* citizens of this Constitutional Republic! It's not as if there isn't already in existence the very Founding Document of this nation that already spells out the fact of our existence as citizens endowed with certain inalienable rights and civil liberties! It's there! The wheel has already been invented for us! Moreover, centuries of liberty-consecrated souls have sacrificed *their lives* so that this Founding Document would still stand today as the beacon of true freedom, OUR true freedom. It's high time we shake off the reticence so subliminally and insidiously instilled into our psyches and take up the *courage* to stand up for the truth! This truth is our *greatest* weapon, not volumes of strategic brochures and legions of would-be opinion swayers, or the fickle whims of any populace. Dare to breathe new life into this nation. We are at a crossroads. I can't think of a more fitting capstone for the summit of the 50-year Civil Rights Movement than for history to witness this nation's last disenfranchised and, not surprisingly, most reviled Minority rise up to come into our own with a united confidence in, and to reaffirm to a struggling world as well as to our own wayward, dumbed-down nation, the greatest document ever devised by mankind and for the benefit of mankind, the Constitution of the REPUBLIC of the United States. “[D]emocracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.” — James Madison “Remember, democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide”. — John Adams “A democracy is a volcano which conceals the fiery materials of its own destruction. These will produce an eruption and carry desolation in their way.4 The known propensity of a democracy is to licentiousness [excessive license] which the ambitious call, and ignorant believe to be liberty.” — Fisher Ames, Author of the House Language for the First Amendment “We have seen the tumult of democracy terminate . . . as [it has] everywhere terminated, in despotism. . . . Democracy! savage and wild. Thou who wouldst bring down the virtuous and wise to thy level of folly and guilt.” — Gouverneur Morris, Signer and Penman of the Constitution “[T]he experience of all former ages had shown that of all human governments, democracy was the most unstable, fluctuating and short-lived.” — John Quincy Adams “A simple democracy . . . is one of the greatest of evils.” — Benjamin Rush, Signer of the Declaration “In democracy . . . there are commonly tumults and disorders. . . . Therefore a pure democracy is generally a very bad government. It is often the most tyrannical government on earth.” — Noah Webster “Pure democracy cannot subsist long nor be carried far into the departments of state, it is very subject to caprice and the madness of popular rage.” — John Witherspoon, Signer of the Declaration “It may generally be remarked that the more a government resembles a pure democracy the more they abound with disorder and confusion.” — Zephaniah Swift, Author of America’s First Legal Text

A suggestion

One of the reasons that the Right is so good at what they do is that, more often than not, they are patient, patient people. Lose ground in the 60's? Rebuild and retool for decades, until you get the Contract with America and the Gingrich revolution. It's the same with any issue. The anti-choicers now are using "partial-birth" and "parental notification" strategies to chip away slowly but surely at Roe v Wade rather than trying to overturn the decision wholesale.

In short, they're ruled by cold, cold logic. While they possess the same type of deep and abiding passion for their causes as we on the Left do, they do not let that passion rule them. Rather, it seems they let that passion sustain them and fuel almost infinite patience as they watch their water drip-drip-drip, knowing that it will eventually eat through the stone.

We progressives need to be the same - fueled by passion, letting that passion sustain us and motivate us to be as creative and energetic as possible, but allowing our actions to be ruled solely by bloodless logic. Strategy must be dictated by one thing and one thing only: what LOGICALLY predicts the most amount of success in the shortest amount of time, looked at in both the short-term battle and long-term war.

The battle for same-sex marriage is one that cannot be ruled by those who are impatient enough to say, "full speed ahead and damn the torpedoes" - that in and of itself is as clear a sign as any that a person is ruled by emotion rather than reason. Likewise, it should not be ruled by those who have an overriding fear of failure, as that, too, is when passion conquers logic. Rather, the leaders in that fight must be dispassionate, letting logic and only logic dictate the best course of action.

The hard fact is simply thus: your passion is irrelevant to actual victory except insomuch as it motivates you to take steps along a plan dictated by logic. The sad truth of American democracy, and perhaps human nature, is that no matter how much it hurts to acknowledge it, your pain and sorrow, your joy and wonder, are irrelevant to actual victory. Rather, if you let them rule you, they can lead to an imprudence that ultimately causes defeat.

In order to win, we must be as cold, bloodless, and patient as the Right - and as willing to acknowledge harsh political (and legal) reality. While debate on where exactly lies is healthy and helpful to the movement, how that reality makes you feel is, unfortunately, completely irrelevant. The sooner we all acknowledge that painful truth, the more easily we will move forward together.

/rant

/rant ... THIS IS AN AWESOME COMMENT.

Thank
you
very
much.

Sorry, that last paragraph

Sorry, that last paragraph should read:

In order to win, we must be as cold, bloodless, and patient as the Right - and as willing to acknowledge harsh political (and legal) reality. While debate on where THAT exactly lies is healthy and helpful to the movement, how that reality makes you feel is, unfortunately, completely irrelevant. The sooner we all acknowledge that painful truth, the more easily we will move forward together.

A suggestion

All useful advise but you neglect two very important things.

(1) All of this is politics. Pure stategy - the way of the slow plodding turtle - may get you where you want to go eventually, but the long view isn't how politics work. Politics is about passion and also watershed moments - a tipping point if you will.

(2) The struggle between what we call the Right and the Left now will never go away. That is pretty much an eternal struggle. We can never achieve victory over the right - we can only move the goalposts. This debate is about moving the goalposts - making the debate not about whether we permit gay marriage but HOW we permit it.

The point is that I believe that we are at a tipping point or watershed moment with gay marriage. We've plodded for a long time and now we have a unique opportunity and a unique set of circumstances that could get us over the top. All we lack at the moment is the will to push this over the top. Yes, there is risk here, but all things like this contain great risks - as well as the potential for great advance.

I could make this very long and very detailed, but let me point out a couple of things that you may not have put together in one place.

John McCain's campaign manager recently chided the GOP for their harsh stance on gay marriage.

Antonin Scalia wrote in his dissent to Romer v Evans that the majority has removed all constitutional basis for denying same sex marriage and he has also stated that federalist principles may require conservatives to accept same sex marriage.

Dick Cheney (I shutter while I write this) recently stated that same sex marriage should be a state issue and that all people are entitled to freedom (in reference to marriage equality).

The right is starting to run out of steam on this issue. It took an incompetent opposition and over $ 40 million dollars for the Catholic and Mormon churches to scare the hell out of a thin majority of people to get Proposition 8 passed this time. When the case went in fron of the Supreme Court, even the republican governor suggested that the court should overturn the Proposition.

This year, in a few short months we've had four states added to the list of states offering gay marriage. New York has the issue on it's plate and New Jersey may not be far behind. One of those states is IOWA. The conservates cannot even easily get a proposed Constitional amendment out of the legislature in IOWA!

Many legal scholars do not think that the California Supreme Court recent decision can get a pass on 14th Amendment grounds in the federal courts because they set up a separate but equal scheme that is by definition a presumptive violation of the 14th Amendment. It's hard to imagine what kind of pretzel logic conservates might have to use to get this one by.

Finally, polls are mixed but for the most part the differences between those who would accpet same sex marriage and those who would oppose it are very close and in many places within the statistical margin of error.

We CAN push this over the top by abandoning our bloodless, cold, logical approach to this and appeal to justice with passion and energy. Yes, these things don't play very well with the court, but whether you believe it or not, the court does not operate in a box - they read and understand where the winds are going. Right now it only takes one justice and he (Kennedy) is on record as the author of the Romer decision as rejecting the main legal arguments against gay rights. We probably have the votes and some Court experts believe that Alito and Roberts may join a majority on federalist grounds. If so, we might have 7 votes and the whole magilla.

How can we not take this chance? As one half of one of those 18,000 marriages declared legal I cannot make a moral argument for not fighting like hell to give every gay man and woman in this country a chance at the happiness I've experienced by getting married.

TO: aribenyaakov the warrior

Sorry, sir, your eagerness to take risks with the rights of others drastcially undercuts the credibility of your argument. Frankly, I doubt you are who you say you are. And I "shudder" to think what will happen if you are wrong.

Gay Rights - Proposition 8

The People voted against gay rights, that's it ! The people have spoken out numberously about what they want to be the recognized law of the land. By continuing this ridiculous battle, the gays are infringing on the rights of the majority of the people. This decision is one for the people to decide, not the Supreme Court. The people have spoken.

The people can not be

The people can not be trusted with an issue like this, because the people are and always will be biased. The point of the Supreme Court, and always has been since John Marshall, is to settle these kind of disputes. If it wasn't for the Supreme Court schools would still be segregated.

i am not gay but they should

i am not gay but they should pass this. just let them be.

WASTE INDUSTRIES CYBER STALKING HOME INVASION POISONINGS WHITE C

I have a psycho white collar crimminal prowler named Michael T. Ingle stalking my family in South Carolina sending us death threats and breaking into my home putting poison in our food and drink. I have been fighting with these crimminals at Waste Industries since 2004 about cyber stalking and child porn stalking in Fayetteville, NC in the waste disposal industry and I began recieving death threats immediately after my friend/accounts payable manager passed away at Waste Industries in Durham, NC. I am sure she was Murdered as it turned out that her Sister died just a few days later and the Family told me at the Funeral they felt it was due to a Poisoning. The Waste Industries in Durham, NC is very much currently involved in Republican Corruption and the FBI has got involved locally here in South Carolina and been sending Death Threats to my Family. I complained that our branch manager Michael T. Ingle was stalking my 15 year old Little Brother in the middle of the night with the Waste Industries corporate computer network for his Classmates chat logs and webcams and he began to act like a complete psychopath after he transfered out of state to Atlanta, Ga and began threatening me with Poisoning due to his "wife and kids". I began noticing that when I got in my truck to drive I felt like they were using the NC State radio station to harass,insult,stalk and intimidate me to keep me from talking about what looks like some form of "Christian Cover Up "Excuse" for Child Pornography Scandal" involving their belief that the Patriot Act gives them the right to stalk any teen or unsuspecting woman in the community they feel like stalking for their emails, chat logs, sexting and/or sex tapes. This has degraded into a "Republican Sex Scandal" and Celebrity Stalking in the Carolinas and they are so deep into Federal Crime now all they have left are Threats of Violence, Home Invasion and Poisoning. I Refuse to back down from this kind of Trash Corruption, my step-father is retired from Pope AFB and he works in civil services and my Mother has been continuing to go to work at CVS everyday where she is the manager of the 24 hr store in N. Myrtle Beach even though some "Weird Pervert Psychopath" is Stalking her, probably ( I'm sure ) Masterbating to her bank records w/ the Patriot Act and harassing her everyday following her around town obsessing over her position with CVS because he's jealous. I was born in Modesto, I went to Modesto high and this cyber stalking crimminal at Waste Industries "cooked up" a scheme to Posion me with Prostate Cancer medications by Stalking my home w/ Domestic Eavesdropping equipment & setting up Home Invasions and now I have been waking up ever since with Semen Emissions in my Underwear like as if I was 12 again.. this was a sick perverted social networking scheme by a "Sexual Sadist" in the workplace to create a copycat like crime after what Scott Peterson did to Lacy Peterson because I was born in Modesto, Ca and he was jealous because the republicans here are corrupt and involved in Cocaine Trafficking up Interstate I-95 from Atlanta,Ga through Lumberton, NC - ( Operation Tarnished Badge ). I believe my contractor/boss Michael T. Ingle became jealous of me because I owned my own commercial painting buisness, made other contacts in the industry at Waste Management,GDS & Republic that he could not control, accused me of being a "faggot" for listening to drum'n bass, a "satanist" for listening to heavy metal, and a "terrorist" for using social networking sites because I believe they are jealous that I still have a friends in the community that I can socialize with when they sit up in the middle of the night and "troll" the community. I know for a fact that they were using the Waste Industries computer network to hack into Underage Teens computers leaving Keyloggers in their computers at home to try to collect Child Porn and when he hacked our computer in my 15 year old little brothers bedroom in the middle of the night, repeatedely, and stole our bank account numbers/records & he became jealous of my family for having money and began stalking my Mother because he felt she should not have a better job than his wife because his wife attended UNC for 4 years. My mother has worked for CVS for 15 or more years and recently trained the CVS stores in Northern California when they acquired Longs drugs. I believe these are just desperate "republican crooks" trying to terrorize people in the community because they are jealous that Obama is the new president. I cannot get help from the local police or FBI because they try to say that I am just imagining all of this. Always one step ahead of the curb!--

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Always one step ahead of the curb!
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