Unlikely Foes: Ted Olson Takes On Proposition 8

There's an epic battle brewing on the Western front, and it's going largely unnoticed. Theodore Olson, former Solicitor General under the second Bush administration and a staunch conservative and Federalist, along with David Boies have filed suit in the Northern District of California challenging Proposition 8 on, inter alia, equal protection grounds under the 14th amendment. Ted Olson and David Boies are titans in the legal industry. Interesting tid-bit: Ted Olson and David Boies were adversaries in Bush v. Gore, with Olson defending Bush and Boies defending Gore. They stand at the opposite ends of the political spectrum. Yet, they are standing together in the name of equal protection.

Proposition 8, by way of Strauss v. Horton, was upheld by the California Supreme Court a couple months ago, which resulted in the continued validity of 18,000 gay marriages that occurred prior to the decision but outlawed any further gay marriages. So currently, while 18,000 gay marriages remain valid, no others are permitted under California law. And the rub is that now you necessarily have inequality based on sexual orientation. Proponents for Prop 8, led by attorney Charles Cooper, another legal titan, will argue that because each individual still has the right to marry whoever they want, as long as marriage is between a man and a woman, there is no equal protection violation. Opponents of Prop 8, led by Olson and Boies, will equate a ban on gay marriage with a ban on interracial marriage, specifically pointing to Loving v. Virginia that struck down on equal protections grounds a Virgina law banning interracial marriages.

I part company with many conservatives and find Olson's challenge to Proposition 8 compelling. I fully support it. Some conservative legal scholars, particularly those from the Alliance Defense Fund and the Liberty Counsel have argued that Loving v. Virginia is distinguishable with Proposition 8 because in Loving there was indeed discrimination based on a suspect class, namely, race, but that here, there is no such discrimination because sexual orientation is not a suspect class. In other words, the ban on interracial marriage treated people differently based on race, a fundamental trait, but that Proposition 8 does not because presumably sexual orientation is not a fundamental trait recognized by our laws. Another argument is based on federalist principles in that the people of California voted for a measure and therefore federal courts must respect the outcome.

Although I rarely part company with the ADF and Liberty, I must say both arguments are specious. The first argument is specious because there is necessarily unequal protection in California due to the ruling in Strauss v. Horton - you have 18,000 gay couples enjoying a fundamental right to marry (a right that is well established to be fundamental) while other gay couples are not enjoying the right beause they cannot under Strauss v. Horton. This presents an unequal instance that seems clearly violative of the 14th amendment equal protection guarantee. And if you accept that Proposition 8 is therefore unconstitutional, then it doesn't matter if 99% of Californians voted for the measure, it must be struck down.

As the saying goes, you can't have your cake and eat it too - gay marriage is either valid of invalid. If you say marriage is between a man and a woman, that is black letter law and thus must be enforced as such, which would necessarily mean that the existing 18,000 gay marriages must be invalidated as well. We are talking about a fundamental right here. But if you're going to allow the 18,000 gay marriages to remain valid, then you are necessarily saying that those gay marriages are legally valid, which in turn means marriage can indeed be between same-sex couples, which then means Strauss v. Horton is unconstitutional on equal protection grounds. Again, under our Constitution, you can't say the 18,000 gay couples can enjoy a fundamental right, but no other gay couple can. Undoubtedly, this presents a constitutional conflict ripe for the Supreme Court.

This case is surely going up all the way to the Supreme Court. The timing poses a risk for Olson and the gay community. The biggest risk is that the Supreme Court will take the opportunity to declare once and for all that marriage is strictly between a man and a woman, effectively acting as a federal amendment to the Constitution. Then, Olson and the gay community would be hoist by their own petard. This is outcome if very possible given the make-up of the Court presently.

Regardless of whether you have moral problems with homosexuality and gay marriage, I think everyone who respects our Constitution should really consider the merits of Olson's case. In our nation, fundamental rights are provided to every citizen with equal vigor. We don't say one person can enjoy a right but another cannot. Loving v. Virginia makes it clear that marriage is a fundamental right. Moreover, our founding fathers were explicit in their intent to protect the weak from the strong, to protect the minority from the majority, and is why our country is a Democratic Republic, as opposed to a full-fledged democracy. Just because the majority of a state (or even our nation) votes one way or another, if that vote violates equal protection in any way, that must be struck down. That is the job of the Judiciary, our third, and perhaps the most influential and powerful, branch of government.

One last point, whether you support Olson and his lawsuit against the current status quo in California boils down to this question: What's more important to you, 14th amendment equal protection or stopping gay marriages in California? For me, it is unquestionnably the former. Olson's lawsuit challenges the inequality that resulted from Strauss v. Horton. In order to correct this situation, Olson is hoping to reverse Strauss and allow gay marriages in California and in doing so must directly attack Prop 8. If, however, stopping gay marriage is more important to you, then you are willing to tolerate the clear equal protection violation we currently see in California and will side with the proponents of Prop 8. Even if you supported Proposition 8, you can still maintain your integrity: by supporting Olson, you are not necessarily supporting gay marriage, but rather you are supporting equal protection and claiming that either everyone deserves to enjoy a fundamental right or no one does.

So my hat's off to Ted Olson and David Boies. Godspeed.

American Confucius