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Strange Bedfellows Indeed
August 19, 2009 6:37 AM   Subscribe

Theodore Olson was the 42nd United States Solicitor General, serving from June 2001 to July 2004. He also was attorney general during the Ronald Reagan administration, where he defended Reagan during the Iran-Contra affair. He appeared before the Supreme Court fifty-five times as solicitor general, most recently arguing Bush's side in the case Bush V. Gore which decided the outcome of the 2000 election. He is a member of the Federalist Society, which seeks to reform constitutional law to bring it more in line with an originalist interpretation of the constitution, and was on the board of The American Spectator magazine. But his current case, which he says could be the most important case of his career, has many fellow conservatives scratching their heads. Because Theodore Olson is going to argue before the Supreme Court in favor of overturning California's Proposition 8 and thus legalizing same-sex marriage.
posted by EmpressCallipygos (57 comments total) 4 users marked this as a favorite

 
Federalists as a whole do not like gays and lesbians — until very recently, discrimination has neatly fit into a pro-state's rights position because most states are against recognizing equal rights for gays and lesbians. Further, maintaining the issue as a matter of state's rights helps to divide-and-conquer legislative efforts, and helps contain broader progress on civil rights.

Therefore, I'm wary of this individual's efforts and wonder if he really is a trojan horse, working surreptitiously to pursue the conservative hate agenda by, for example, bringing a weak case forward, yielding Supreme Court rulings that undermine civil rights for another several decades.

Frankly, if a case is brought to the Supreme Court, I'd prefer it be by someone we can trust. I very much hope I'm wrong about him and his motivations.
posted by Blazecock Pileon at 6:50 AM on August 19, 2009 [8 favorites]


From the looks of things -- according to the New York Times article in the sixth link -- his motivation is something like, "I don't like it when people go out on a limb reading things into the Constitution. And, there actually is no language in the Constitution that specifically says marriage is 'one-man-one-woman', and so Proposition 8 is trying to go out on a limb reading something into the Constitution. Therefore, I'm against it."

Also, according to that article, he got interested in the case after having some conversations with Rob Reiner. Which I somehow find even more baffling.
posted by EmpressCallipygos at 6:55 AM on August 19, 2009 [1 favorite]


during the Reagan administration, when Mr. Olson was asked if the Justice Department could dismiss a prosecutor for being gay, he wrote that it was “improper to deny employment or to terminate anyone on the basis of sexual conduct.” In 1984, Mr. Olson returned to private practice and was succeeded by Mr. Cooper, his adversary in the marriage case. The switch eliminated “what was seen as a certain libertarian squishiness at the Office of Legal Counsel under Ted,” Mr. Calabresi said.

I think I'm going to start using "libertarian squishiness" as a euphemism.
posted by 445supermag at 6:57 AM on August 19, 2009 [1 favorite]


Agreed, Empress (and 445). My husband is of a similar legal mindset as Olson, and he's not an OMGHATE conservative. I know people tend to want to excoriate Olson because he was part of the Bush administration, but that "libertarian squishiness" is a key part of his legal makeup, really. And Prop 8 is about as contrary to that as you can get. I'm actually encouraged to know that he's on the case.
posted by somanyamys at 7:00 AM on August 19, 2009 [1 favorite]


Another interesting thing about Ted Olson is that his wife, Barbara Olson, was a conservative commentator, whose name was usually said in the same sentence as Ann Coulter, until she died on Sept 11, 2001 in the plane that hit the Pentagon.
posted by hydropsyche at 7:02 AM on August 19, 2009 [2 favorites]


Because Theodore Olson is going to argue before the Supreme Court in favor of overturning California's Proposition 8 and thus legalizing same-sex marriage.

Wha?! Where did you see this? As far as I can tell, they've barely even started pushing this case through the federal system. Has there even been a hearing yet?
posted by mr_roboto at 7:05 AM on August 19, 2009


The idea that someone who worked the Bush side of Bush v. Gore will be arguing before the Supreme Court to overturn a gay marriage ban causes me to reflexively raise an eyebrow. Not, mind you, because I believe his motives are to betray the cause he will argue for, but because it indicates to me that his interest may be more in securing a place for himself in legal history rather than in representing a particular ideology.

Regardless of his intentions, it is somewhat refreshing to see a shade of grey at that level in the black versus white, conservative versus liberal political landscape.
posted by Pragmatica at 7:10 AM on August 19, 2009


we have discussed this before
posted by caddis at 7:14 AM on August 19, 2009


He appeared before the Supreme Court fifty-five times as solicitor general, most recently arguing Bush's side in the case Bush V. Gore which decided the outcome of the 2000 election.

This is somewhat awkwardly worded. I'd like to note that when Olson argued for Bush in Bush v. Gore he was in private practice. He became Solicitor General after Bush entered office.
posted by jedicus at 7:20 AM on August 19, 2009 [2 favorites]


After reading the article, he sounds solidly behind the case.
In Mr. Olson’s analysis, the situation in California presents a favorable set of facts for an equal protection argument. Proposition 8 created three classes: straight couples who could marry, gay men and lesbians who had married in the brief period before the ban, and gay couples who wanted to marry but now could not.
In regards to mr_roboto's question about the level of judicial review:
A hearing in the marriage case, filed on behalf of two gay couples, is scheduled for Wednesday in federal court in San Francisco. Practicing his opening argument recently, Mr. Olson declared that California’s ban is “utterly without justification” and stigmatizes gay men and lesbians as “second-class and unworthy.”

“This case,” he said afterward, “could involve the rights and happiness and equal treatment of millions of people.”
I think he was hired on with the notion that he's in it for the long haul. Also of note: Olson suggested that David Boies be brought onto the team to overturn Prop 8. Boies was the adversary in Bush v. Gore, whom Olson had since befriended.

This is a pretty solid article, giving a good bit of background on Olson's position in this case. And I'll be honest - the last line makes me tear up.
posted by filthy light thief at 7:23 AM on August 19, 2009 [1 favorite]


Hmm. On one hand, that NY Times article is very reassuring. On the other hand, when the NY Times runs a political article that really thoroughly reassures you that something is contrary to how it looks on its surface, there is a decent chance that they cut it out of whole cloth.

On the third hand, Olson's wife is named Lady which is making it really hard for me not to make the easy joke about non-traditional marriage.

Hope Olson's for real; I have no idea why the parties involved didn't want to go with one of the many outstanding lawyers with less "!?" going on, but if the big political players on the anti-8 side were competent and coordinated, there would be no case to make right now.
posted by Your Time Machine Sucks at 7:26 AM on August 19, 2009


Pragmatica because it indicates to me that his interest may be more in securing a place for himself in legal history rather than in representing a particular ideology.

That's a far more honourable motive, IMO, and likely to lead to a much better outcome for everyone concerned, no matter what the case in question. It's almost unavoidable for a lawyer to have a personal desire to see one side or the other win (preferably his/her own!) when bringing cases that have strong policy implications and ideological content, especially at the highest level of court; lawyers are people too. (And so are the judges who hear the cases.)

However one of the excuses by which the adversarial system continues to be tolerated, despite its basic corruption of "justice" into a mere money-measuring contest, and its contemptuous disregard for the simple duty to pursue truth, is the proposition that a lawyer, although he/she may want his/her case to succeed, will argue that case honestly. The lawyers won't just bring forth their own arguments and precedents, but will also address and acknowledge the arguments of their opponents, and distinguish the case from any contrary precedent. Strong ideological viewpoint (or a major financial interest in the outcome of the case, which is a whole other Problem With The Law as practiced in the USA and some other nations) can only tempt a lawyer away from that standard.
posted by aeschenkarnos at 7:31 AM on August 19, 2009 [1 favorite]


And if you've read the article and stumbled on the "judicial sin" comment from Robert Bork, here's the background and quote:
Speaking to about 300 Catholic clergy, judges and lawyers at a breakfast, Bork criticized the Massachusetts Supreme Judicial Court's ruling in November legalizing gay marriage, The Advocate of Stamford reported in editions prepared for Monday.

"Many of our courts are guilty of that judicial sin, that is willingness, even eagerness, to reach results announcing principles that have no plausible relation to any constitution," Bork said.
Also, I'd like to point out to anyone who uses "homo" as a derogatory term, in the broadest of applications it is a combining form appearing in loanwords from Greek, where it meant "same." Or, it is also short-hand for a member of the genus Homo.

Your Time Machine Sucks: That's Lady Booth to you.
posted by filthy light thief at 7:32 AM on August 19, 2009


Further addendum: I have no idea why the parties involved didn't want to go with one of the many outstanding lawyers with less "!?" going on
Mr. Reiner was intrigued. The tactician in him saw the wisdom of hiring a lawyer who had won 44 of the 55 Supreme Court cases he argued; the director grasped the dramatic impact of such a casting decision. He dispatched Mr. Griffin to consult with experts about the feasibility of a federal court challenge to Proposition 8 and to gauge Mr. Olson’s interest.

“I thought, if someone as conservative as Ted Olson were to get involved in this issue, it would go a long, long way in terms of presenting this in the right kind of light,” Mr. Reiner said.
posted by filthy light thief at 7:34 AM on August 19, 2009 [1 favorite]


I'd like to note that when Olson argued for Bush in Bush v. Gore he was in private practice. He became Solicitor General after Bush entered office.

Thanks, jedicus. I plead a caffiene deficiency.
posted by EmpressCallipygos at 7:36 AM on August 19, 2009


I see this as a reminder that people don't fit neatly into the binary constructs of liberal/conservative that our society has created. The people I hang around with tend to be all over the map ... and their position on one issue rarely gives you a clue as to their position on a separate issue (unless you understand there world view). For example, one may be for more immigration another for less immigration. The pro-immigrant may be against abortion, and for same-sex marriage, and against single payer health care. In my experience, using the binary model of liberal/conservative to infer the politics of an individual from one issue to a separate issue is full of fail. However, if you know the person, and what their internal view point is (at least if they have a consistent one), then it may be reasonable to infer their position across several issues.
My point being that people like Mr. Olson should be the rule, rather than the exception. And to the extent that he is an exception is a measurement of how reductionist and misleading our political descriptivism has come.
posted by forforf at 7:41 AM on August 19, 2009 [10 favorites]


I see this as a reminder that people don't fit neatly into the binary constructs of liberal/conservative that our society has created.

I'm not sure whether it's amusing or sad that people on both political sides -- left and right -- are apparently reacting to this news by wondering, "....Huh, did he maybe just have a family member come out of the closet? Because that would explain this."

As if he couldn't have come to his decision any other way. Feh.
posted by EmpressCallipygos at 7:54 AM on August 19, 2009 [2 favorites]


I am happy to see someone from the conservative side capable of thinking and acting independently. But for me, the best part of the NYT article was this line: "Mr. Olson, who is not a regular churchgoer...". Well geez. He's lost all of his republican cred now!
posted by shrabster at 7:56 AM on August 19, 2009


As far as I can tell, they've barely even started pushing this case through the federal system. Has there even been a hearing yet?

Scheduled today in San Francisco federal district court.

I'll eat some serious haberdashery if Olson isn't arguing this before Supremes, though, in a couple years. The only reason I can think of for it not getting cert is the liberal wing thinking they don't have the votes to win/win in such a way to make it stick.
posted by joyceanmachine at 8:04 AM on August 19, 2009


I'm really not sure it is wise to view Olson's involvement as a potential trojan horse. The article makes it very clear that Olson has been struggling, both personally and professionally, against discrimination of all sorts for decades, and has personally worked against discrimination toward gays since at least the Reagan administration. I heard about his taking of this case months ago, and am pleased to read that it was not simply rumor but that he's actually moving forward in a serious way. I hope that his efforts will move me and so many others out of second-class citizen standing and into full participation in the American ideal which includes liberty AND pursuit of happiness.
posted by hippybear at 8:12 AM on August 19, 2009 [3 favorites]


I see this as a reminder that people don't fit neatly into the binary constructs of liberal/conservative that our society has created.

For real. Nowhere is this more clear than Obama (publicly against same-sex marriage) and Cheney (now publicly in favour of same-sex marriage).

I know people may dither about this, and say that they think Obama "really" is in favour, but if that's so, stand up and be counted, Mr. President.
posted by modernnomad at 8:35 AM on August 19, 2009 [1 favorite]


Cheney (now publicly in favour of same-sex marriage)

Wow, really?
posted by DU at 8:49 AM on August 19, 2009


Cheney (now publicly in favour of same-sex marriage)

For his daughter, perhaps.
posted by Blazecock Pileon at 8:51 AM on August 19, 2009


Wow, really?

Who knew?
posted by Pragmatica at 8:54 AM on August 19, 2009


Cheney supports same-sex marriage so long as it is determined on a state-by-state basis, rather than federally mandated. Really. Also mentioned in the NY Times article linked to by the OP.
posted by modernnomad at 8:55 AM on August 19, 2009


Cheney supports same-sex marriage so long as it is determined on a state-by-state basis, rather than federally mandated.

That's completely consistent with his decentralized, non-hierarchical, grassroots approach to governing in all other political spheres.

In other words, Cheney "supports" gay marriage in order to get along with his family, but in the code worded "states rights" language that everyone knows really means he doesn't.
posted by DU at 9:14 AM on August 19, 2009


most states are against recognizing equal rights for gays and lesbians

In other words, if we make the decision at a states' level, gays and lesbians will have equal rights in some states, and if we make the decision at a federal level, gays and lesbians will have equal rights in no states. Why you think preferring the former outcome is "pro-discrimination" is a little baffling.
posted by roystgnr at 9:21 AM on August 19, 2009


I always saw Cheney's stance as "I support gay marriage, but actually coming out and saying that would neuter my ability to influence the Republican party, so I'll come as close as I can."
posted by Tomorrowful at 9:27 AM on August 19, 2009


In other words, if we make the decision at a states' level, gays and lesbians will have equal rights in some states, and if we make the decision at a federal level, gays and lesbians will have equal rights in no states.

And, more to the point, just about the only way you could conceivably grant equal rights at the Federal level is via the court system, which is a pretty fundamentally undemocratic way of doing it. It's only justifiable if you either are ideologically committed (which most gay marriage proponents are), or if you take a literalist reading of the Constitution that simply has no room in it for discrimination, since it doesn't say anything about marriage being necessarily heterosexual.

That's why Olson is an asset to the anti-Prop-8 camp; he comes at the issue from a different place: rather than taking gay marriage on premise and then finding legal reasoning to justify it (an attitude that, while I might agree with it personally, might go over very poorly in court), he can at least claim to have begun from the law and worked from there to a point where accepting gay marriage is the only correct decision. It makes him, and the entire case he's going to be running, a lot more difficult to write off as simply using the courts to push a social agenda that's too controversial to succeed any other way.

Put bluntly, he gives the case a sort of disinterested legalistic legitimacy that it would otherwise lack if the only people behind it were 'true believers' in the issue. My suspicion is that you'll see a lot of effort from the far- and religious-right to discredit him (hence the faux-innocent "I wonder if he had a family member come out lately?") and paint him as an ideologue, and that's if they don't come right out and call him a closeted homosexual for supporting gay marriage, just on principle.
posted by Kadin2048 at 9:43 AM on August 19, 2009 [3 favorites]


As a gay man who ain't gettin any younger and has found the guy he wants to grow old with, I'm all for pushing for the right to marry NOW. That said, when I saw this, I imagined this case going before the current SCOTUS. I then went to get a beer because alcohol is great for depression (and diabeetus). IANAL or a constitutional scholar, but the name "Scalia" keeps popping into my head any time someone talks about bringing anything related to gay rights in front of the SCOTUS. His knowledge of constitutional law and the views of the framers aside, he's a hateful fuck.
posted by crataegus at 10:05 AM on August 19, 2009


Why you think preferring the former outcome is "pro-discrimination" is a little baffling.

If the push is to get to the Supreme Court, then if Olson's SCOTUS case fails — assuming it gets there — we're not only back to where we were before, but potentially worse, given a federal ruling that either preserves or strengthens DOMA. Meanwhile, most states will continue to write more discrimination into law (while an enlightened handful may get to go the other direction). This situation would seem to be the Federalist ideal, no?
posted by Blazecock Pileon at 10:20 AM on August 19, 2009


Those pushing the semi-ridiculous "trojan horse" theory might want to re-read something quoted above:

during the Reagan administration, when Mr. Olson was asked if the Justice Department could dismiss a prosecutor for being gay, he wrote that it was “improper to deny employment or to terminate anyone on the basis of sexual conduct.” In 1984, Mr. Olson returned to private practice and was succeeded by Mr. Cooper, his adversary in the marriage case. The switch eliminated “what was seen as a certain libertarian squishiness at the Office of Legal Counsel under Ted,” Mr. Calabresi said.

Olsen also disagreed with a lot of Bush's war on terror power grabs. He's always been against discrimination. He has libertarian leanings, and as much as this site is LOLBERTAIRAN, it does inform his view on personal rights.
posted by spaltavian at 10:55 AM on August 19, 2009


I see this as a reminder that people don't fit neatly into the binary constructs of liberal/conservative that our society has created.

...he can at least claim to have begun from the law and worked from there to a point where accepting gay marriage is the only correct decision...

Put bluntly, he gives the case a sort of disinterested legalistic legitimacy that it would otherwise lack if the only people behind it were 'true believers' in the issue.


All so true. Supporters of Prop 8 really need to swallow their fear of conservatives for two seconds and realize that they (we) have been given a huge gift here.

I realize I'm about to say something completely radical for MeFi, but not every conservative is a raging hatemonger. Srsly.
posted by somanyamys at 10:57 AM on August 19, 2009


Go, Ted, go!!!
posted by Mental Wimp at 11:17 AM on August 19, 2009


Yeah, and Ted Olson was the guy that said "When you got 'em by the balls,their hearts and minds will follow" concerning his and Nixon's view on the American electorate.

I don't care what he's in favor of now, screw that worthless little pigfucker.
posted by Relay at 11:43 AM on August 19, 2009


I'm with BP on this one. Seems risky and too important to trust a dude like this with something this important.
posted by lazaruslong at 11:45 AM on August 19, 2009


It's hard to see what Olson would get out of putting anything less that his full and honest effort into this case. It's not like he's running for elected office, or in need of $. Any lack of diligence would just hurt his legacy and legal reputation. It's not like he's hurting for clients.

I think there two options -- he honestly believes in the underlying position, or it looks like a damn fine game. I'd be tempted to give him the benefit of the doubt and go with the former reason, but either way, he's in it to win, not throw it for the other side.
posted by mercredi at 12:33 PM on August 19, 2009 [2 favorites]


but the name "Scalia" keeps popping into my head any time someone talks about bringing anything related to gay rights in front of the SCOTUS

Well, I think it's almost certain he won't support gay marriage, but that hardly means it's doomed. I think Romer v Evans, as Olson says, is the analogy we're hoping for -- if you look at the court then: 6 for (of which Kennedy (who wrote the decision), Breyer, Ginsburg, and Stevens are still there) and 3 against (of which Thomas and Scalia are still there).

If we assume Roberts and Alito are "no", that makes it 4 v 4, with Sotomayor as the wild card (hopefully in favor, but we won't know much about her until we start seeing some decisions).

Of course, this all assumes that the court agrees with that line of attack, but it seems to be pretty similar to what Olson has planned for Prop 8.
posted by wildcrdj at 12:40 PM on August 19, 2009


Scheduled today in San Francisco federal district court.

Judge sets January trial date for Prop. 8 case.
posted by ericb at 12:59 PM on August 19, 2009


Supporters of Prop 8 really need to swallow their fear of conservatives for two seconds and realize that they (we) have been given a huge gift here.

Many supporters of Prop 8 are conservatives!

I think you meant to say opponents on Prop 8.

And, in that error -- shared by many -- you have pointed out the confusing language of Prop 8 on the California ballot last November.
posted by ericb at 1:06 PM on August 19, 2009


I am friends with two extremely conservative people. I disagree with them on practically everything, and consider many of their views to be flat-out nuts. They listen to a lot of right-wing talk radio, and I have heard them say, as if it were established fact, that FDR's policies prolonged the depression, that global warming is a myth, and that Obama's tax plan would destroy small business.

They are also completely, totally, 100% pro gay rights. Not everyone fits neatly into a little box.
posted by kyrademon at 1:07 PM on August 19, 2009


In related news regarding the federal government recognizing same-sex marriages :
Massachusetts sues U.S. over gay marriage rights

"Massachusetts sued the U.S. government on Wednesday [July 8, 2009] to seek federal marriage benefits for about 16,000 gay and lesbian couples who have wed since the state became the nation's first to legalize same-sex marriage.

The state is challenging the constitutionality of the federal 1996 Defense of Marriage Act, saying it denies 'essential rights and protections' to married gay couples.

The federal government is interfering with the state's 'sovereign authority to define and regulate marriage,' said the lawsuit filed in federal court in Boston. It calls the law 'overreaching and discriminatory.'

Others have challenged the law in the past but Massachusetts is the first state to do so. 'We view all married persons equally and identically,' Massachusetts Attorney General Martha Coakley told a news conference.

The lawsuit is the latest skirmish over gay marriage in the U.S. federal court system after a handful of political filmmakers led by a Democratic consultant crafted a gay rights challenge in May that they hope will reach the Supreme Court.

It also follows a separate lawsuit filed by a group of married gay couples in Massachusetts in March that also challenged the same portion of the Defense of Marriage Act defining marriage as a legal union between a man and a woman.

...Coakley cited several items denied, including federal income tax credits, employment and retirement benefits, health insurance coverage and Social Security payments"
posted by ericb at 1:13 PM on August 19, 2009


Yeah, and Ted Olson was the guy that said "When you got 'em by the balls,their hearts and minds will follow" concerning his and Nixon's view on the American electorate.

I don't care what he's in favor of now, screw that worthless little pigfucker.


Uh, no. That was Chuck Colson.
posted by oneirodynia at 1:18 PM on August 19, 2009


Very interesting, ericb. I think in some ways that's a much stronger case than California's; it's a pure state's-rights argument, although I suppose that could be sidestepped by someone saying that the benefits being denied aren't state ones, but Federal, and therefore it's not impinging on Massachusetts' right to define marriage within its borders.
posted by Kadin2048 at 1:28 PM on August 19, 2009


If gay marriage goes before this Supreme Court, it will lose. Scalia, Alito, Thomas, Roberts, and Kennedy have demonstrated that they will throw legal precedent and reasoning completely aside when the issue before them is one that Ratzinger has an opinion on.
posted by kafziel at 1:35 PM on August 19, 2009


Aw, fuck "states' rights." How many times do you need to lose an argument? The first government of the United States--the Articles of Confederation--was a states' rights dream with a weak, practically nonexistent federal government that couldn't get anything done. The Founding Fathers scrapped it to make "a more perfect Union" in the Constitution, which strengthened the central government.

Then came the Civil War, where states seceded over states' rights (the rights to own slaves). They wrote their own Constitution, which was a golden opportunity to write a states' rights manifesto. Instead they copy-and-pasted the US Constitution, explicitly referred to "those bound to Service" as "slaves," defined voter eligibility at the federal level instead of state-by-state, and required states to be slave states without the opinion of deciding to be slave or free. The Confederacy authorized conscription in March 1862--a year before the US government did.

After the Civil War "states' rights" was used to prop up Jim Crow and as a code word for resistance to the Civil Rights Movement.

Conservatives love states' rights, until a state wants to decide how to count its own votes or let its citizens decide how to end their lives. Then they love federal intervention.

Federalists as a whole do not like gays and lesbians — until very recently, discrimination has neatly fit into a pro-state's rights position because most states are against recognizing equal rights for gays and lesbians.

That's using the modern Ministry of Truth-style definition of "federalist," which traditionally meant someone "favoring a strong centralized national government" and is now used to mean the opposite. The Federalist Society's logo features James Madison, who wrote the Federalist Papers arguing for a stronger central government under the Constitution.

if you take a literalist reading of the Constitution that simply has no room in it for discrimination

It doesn't. "No state shall...deny to any person within its jurisdiction the equal protection of the laws."
posted by kirkaracha at 1:45 PM on August 19, 2009 [3 favorites]


Scalia, Alito, Thomas, Roberts, and Kennedy have demonstrated that they will throw legal precedent and reasoning completely aside when the issue before them is one that Ratzinger has an opinion on.

But surely the pope (I guess it was a different one at the time) would have been in favor of Colorado prop 2? This article talks a bit about it, and points out that while Kennedy is Catholic, he supported the majority in RvE.

Also, I just learned that Roberts actually assisted with the plaintiffs in RvE (in other words, on the side of gay rights) (here) (and plenty other articles if you Google, apparently conservatives were really worried Roberts might approve gay marriage if confirmed).
posted by wildcrdj at 1:55 PM on August 19, 2009


(I'm not convinced Roberts would vote for gay marriage, mind you, but there seems to be some evidence that they wouldn't stick to the straight Catholic line on the issue).

If Olson can (a) convince those who voted for RvE that Prop 8 is a similar issue, and (b) convince Sotomayor to support the principle and the similarity, then it should be at least a 5-4 in favor.

I would expect Kennedy to be the tough sell, of course, and we don't really know what Sotomayor thinks (she is also Catholic, after all).
posted by wildcrdj at 2:00 PM on August 19, 2009


Scalia, Alito, Thomas, Roberts, and Kennedy have demonstrated that they will throw legal precedent and reasoning completely aside when the issue before them is one that Ratzinger has an opinion on.

You know that Kennedy wrote the opinion in Lawrence, right? Though he was careful to limit the opinion and make clear that it didn't suggest that gay marriage had to be legalized.

kirkaracha, I'm not defending Prop 8 or the other hideous anti-gay marriage ballot measures and statutes of recent years, but as nice as it is to pretend that states' rights = oppression, where do you think the ability of New Hampshire, Massachusetts, et al to legalize same-sex marriage comes from? That's right. The same doctrine that allowed all those terrible things you mention, but that also allowed Wyoming grant women's suffrage 30 years before the 19th Amendment and New York state to abolish slavery in 1841.

Fundamentally, states' rights is a structural theory with deep roots in American history. Yeah, it's problematic, particularly in this day and age, but those problems aren't because only conservatives use it.
posted by joyceanmachine at 2:17 PM on August 19, 2009 [2 favorites]


Other liberal uses of states rights include medical marijuana and gun control (since the 2nd amendment has not yet been incorporated under the 14th amendment, it doesn't apply to the states yet). Thats why NY and CA have such radically different gun laws than NV or TX.
posted by wildcrdj at 2:22 PM on August 19, 2009


Many supporters of Prop 8 are conservatives!

I think you meant to say opponents on Prop 8.


Actually, what I meant to say was "Supporters of overturning Prop 8," but I was typing too fast. Mea culpa.
posted by somanyamys at 2:23 PM on August 19, 2009


If SCOTUS does manage to uphold Prop 8, I'm calling for a general strike by all queers and their associates, friends, families, and others who care. Just put it down and walk out the door. Go stand in front of city hall for days if you have to, until the point is made -- this is a fuckload of people we're talking about whose lives are relegated to second-class status.

Why we don't have more general strikes in this country is beyond me. If all that matters is the capitalist bottom line, then just don't do your job for a few days. It'll be effective, trust me.
posted by hippybear at 2:55 PM on August 19, 2009 [1 favorite]


Uh, no. That was Chuck Colson.

Really oneirodynia? Shit! I always got those two confused.

No matter ... you worked for Nixon, you don't count for much.
posted by Relay at 2:59 PM on August 19, 2009


Can I just say how sad it makes me to read this thread and see how many people still think Ted Olson is a trojan horse? Read the NYT article, for God's sake.

Also, someone in the comments said that this case is *too important* to leave to this guy -- are you fucking me? This isn't some Atticus Finch, good-natured-guy-who-can't-win-but-he'll-try-anyway sort of fellow. THIS IS TED FUCKING OLSON. He will fuck your judicial shit up. I bet when he gets in front of SCOTUS they will vote 9-0 that he is the shit.

If he wins the case I"ll frame a picture of him in my apartment. Guaranteed.
posted by Franklin76 at 5:04 PM on August 19, 2009 [2 favorites]


I thought this quote from the NYT article was interesting:
Mr. Olson structured the lawsuit so the named defendants are two proponents of same-sex marriage, Gov. Arnold Schwarzenegger and Attorney General Jerry Brown. Both have filed helpful briefs questioning the constitutionality of Proposition 8.
What happens in CA when the governor and attorney general aren't interested in defending a proposition like this? It made me wonder what role Cooper was actually playing - this link seems to be saying that there's a procedure for identifying "official proponents" of an initiative that amended CA's constitution, separate from the state government's defense.
Under California’s system for amending its constitution, any citizen or group of citizens can step forward and register to be official proponents of an initiative, according to Cooper. When they do, they obtain a legal status as such. The official proponents of Prop 8 moved to intervene in the case.

Chief U.S. District Judge Vaughn Walker, who is handling the challenge, said that where the state’s attorney general and the governor have declined to defend the statute, and in fact, contend it is unconstitutional, the interests of the official proponents become all the more focused and intense, recalled Cooper. “We are the only party now defending the statute and essentially being the voice of the majority of Californians,” added Cooper.
Anyone know anything about how this works in CA? It seems odd that anyone can become official proponents - what if an anti-Prop 8 Trojan horse group (speaking of Trojan horses) had managed to snag the designation first?
posted by yarrow at 7:41 PM on August 19, 2009


kirkaracha: "It doesn't. "No state shall...deny to any person within its jurisdiction the equal protection of the laws.""

Well, yeah. Of course. But that requires that you read the document and actually take what it says at face value, which a lot of people have a hard time doing.
posted by Kadin2048 at 7:56 PM on August 19, 2009


Also, someone in the comments said that this case is *too important* to leave to this guy -- are you fucking me? This isn't some Atticus Finch, good-natured-guy-who-can't-win-but-he'll-try-anyway sort of fellow. THIS IS TED FUCKING OLSON. He will fuck your judicial shit up. I bet when he gets in front of SCOTUS they will vote 9-0 that he is the shit.

Quoted for awesomeness.
posted by somanyamys at 9:29 AM on August 21, 2009


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