John Dean: The Olson/Boies Challenge to California's Proposition 8: A High-Risk Effort

[babylonsister]

The Olson/Boies Challenge to California's Proposition 8: A High-Risk Effort
by John W. Dean | May 29, 2009


This week, famously, the California Supreme Court issued its decision, Strauss v. Horton, upholding Proposition 8, the voter-adopted prohibition against same-sex marriages. Within twenty-four hours, former U.S. Solicitor General Ted Olson and celebrated trial attorney David Boies had together filed a federal lawsuit seeking to overturn this controversial provision of the California Constitution.

snip//

The Risks of a Federal Action: Many Federal Judges, and Even the Supreme Court Itself, May Be Hostile to the Arguments Made

Prior to Olson and Boies's action, there has been no federal lawsuit seeking to overturn state bans on same-sex marriages. Nor have there been suits attacking the federal discrimination against gays perpetrated by the so-called "Defense of Marriage Act", which precludes gay couples from receiving benefits to which others are entitled. The reason these federal suits, thus far, have never been brought is that attorneys familiar with the federal courts find them so overloaded with conservative Republican judges that they doubt that such efforts would be productive – and fear they could actually be damaging, by setting anti-gay-rights precedent. In short, given the current federal appellate bench, such efforts are not merely futile, but potentially counterproductive.

snip//

Why the ACLU and LGBT Organizations Oppose the Federal Court Actions

After the California Supreme Court upheld Proposition 8, the American Civil Liberties Union, and the leading LGBT (lesbian, gay, bisexual, transgender) organizations posted their advice to same-sex couples about marriage: Rather than advising further court action to deal with the California ban, they advised that it was time to return to the ballot box. And they discouraged the filing of federal lawsuits.

These organizations are very clear about why there should be no effort to file a federal case: "{T}he U.S. Supreme Court typically does not get too far ahead of either public opinion or the law in the majority of states. For example, few states still had laws requiring racial segregation or outlawing interracial marriage by the time the Court struck those laws down. Most states had already struck down or repealed their own laws against same-sex intimacy when the Supreme Court finally invalidated Texas's law ."

More specifically, the ACLU and LGBT rights organizations have noted that a loss in the U.S. Supreme Court on this issue would have a seriously negative impact on the state courts that have been striking down marriage bans on their own. In addition, it might negatively impact efforts at the ballot box. These organizations, which have been fighting these battles for decades, reminded their community that "it took 17 years to undo Bowers v. Hardwick, the 1986 Supreme Court decision that upheld Georgia's sodomy law. That was fast for the Supreme Court. And during that time, many LGBT Americans lost jobs, lost custody of their children, and suffered other harms because the Bow

more...

http://www.smirkingchimp.com/thread/22044

[MarjorieG]

1. Boies always high-profile; it's Olson I don't trust. No lose for Conservatives to get tolerant cred

by no-intolerant, while giving a winner issue if losing.

[elleng]

2. Good points he makes,

Looks like Dean is more 'into' successful strategy for LGBT than are Boies and Olson.

[RUMMYisFROSTED]

3. I've always had a trusting feeling about Ted Olson.

:shrug:

[katty]

4. don't trust Olson...don't f***k this up, Ollie!!

[pnwmom]

5. Thanks for posting this. I'm one of the worriers.

If this action fails, it could set the cause back for decades.

[DURHAM D]

6. Thanks for posting Dean's comments.

I was trying to explain to a friend earlier why this action is a bad idea. I just sent him the link. Maybe he will "get it" now.

I am old and have been through many civil wars. Going back decades the refrain has always been: "Its about the case not the courts".

In other words, be careful what case you bring forward or you can reverse all the gains and make it way more difficult to move forward.

[babylonsister]

7. You're welcome. He does boil it down. And if you're

interested, there are two more articles in here:

See the OP article, and another article in post #5.

http://tpmdc.talkingpointsmemo.com/2009/05/gingrich-digs-in-on-sotomayor-bashing.php?ref=fpblg

[keepCAblue]

8. Looks like the LGBT "leaders" have hired their own PR attack dog in Dean...

It is time for someone else to take charge on securing our rights--we have waited long enough and stood by as our so called community leaders have failed us. Chad Griffin, a former Clinton staffer, Dem politico and Hollywood power broker is the one who is engineering this lawsuit, not Olson or Boies--they are but tools, exceedingly sharp ones at that, who have been hired by Griffin and the unnamed funders of his American Foundation for Equal Rights. (Griffin's clients/connections include Rob Reiner, Steve Bing and Brad Pitt, all of whom contributed generously, at Griffin's urging, to the disastrous No on 8 campaign.)

Keep in mind that two 9th Circuit Court judges have already ruled against sections of DOMA, ruling DOMA, at least in part, unconstitutional. So the Olson-Boies lawsuit, likewise, which will first be heard in the 9th Circuit Court, has a very realistic chance of winning.

And why are all the national LGBT groups only NOW screaming out against a federal lawsuit? Olson and Boies' lawsuit is not the first to be filed -- there is already a pending federal lawsuit, one which was filed back in December 2008 by Orange County plaintiffs Arthur Smelt and Christoper Hammer. Interesting how their lawsuit has received little if any media attention and how the national LGBT orgs have all but ignored this federal lawsuit while lambasting the Olson-Boies filing. Even Queerty.com, just a couple weeks ago (on May 11th) hailed the Smelt-Hammer lawsuit as the next best thing since sliced cheese, while railing against the federal lawsuit filed just one day later (on May 12) by Olson and Boies:

Queerty on the Smelt-Hammer lawsuit: (published May 11, 2009)

Who needs the California Supreme Court to decide whether Prop 8 violates the State Constitution when you can take the matter all the way up to the feds?

Enter Smelt v. United States of America, a lawsuit we love simply because of that "v. United States of America" part, which we want embroidered on a sofa pillow. (We also want to be able to make "Whoever Smelt It" jokes.) Filed by Arthur Smelt and Christopher Hammer, who married in California during that pre-Prop 8 window of legalization, the suit alleges that banning gay marriage, like, violates our constitutional rights. Of the United States of America!

(Smelt's case was filed in state court in December, and moved to federal court in March, though has received little press attention.)

Unrelated to the California Supreme Court's decision on Strauss v. Horton, Smelt's case asks a federal court to invalidate Prop 8 and order "gender neutral" language in all marriage-related legislation. And while they're at it, how about repealing all state bans on same-sex marriage as well as the Defense of Marriage Act?

full blog entry: http://www.queerty.com/the-lawsuit-that-tackles-just-about-every-same-sex-marriage-issue-ever-20090511/

Queerty on the Olson-Boies federal lawsuit (published in Queerty May 27, 2009):

former U.S. Solicitor General Ted Olson and attorney David Boies (who repped Al Gore against Olson in the Bush-Gore election face-off) stepped up to make a federal case out of prohibiting same-sex marriage. Literally: They're filing a federal lawsuit challenging the legality of Prop 8. But does pushing the issue up the court system (en route to the Supreme Court) help the cause, or might we actually be digging ourselves into an inescapable hole?

The strategy of suing our way to equality is the wrong one, according to a new missive from Freedom to Marry, which has the ACLU, Lamda Legal, GLAAD, HRC, Victory Fund, Log Cabin Republicans, PFLAG, and many others on board (PDF). Rather than engage in legalese, we should be reaching out to friends and family and neighbors and colleagues, reminding them gays are just as deserving of rights as any other American, and then getting those folks to the ballot box when we can put the issue back up for vote.

Because if we don't? This case could end up in front of the Supreme Court. And that, the theory goes, is the worst place for same-sex marriage right now.

Full blog entry: http://www.queerty.com/is-filing-a-lawsuit-against-prop-8-actually-the-worst-idea-ever-20090527/

And lastly, for all who are convinced Ted Olson is a double agent for the anti-gay conservative fascists, keep in mind he was hired, after considerable due diligence, by a DEMOCRATIC consultant who is a former Clintonista and whose clients include the most wealthy and powerful in the entertainment industry. From Variety and other sources:

Chad Griffin is a former Clinton staffer and heavy-hitter Dem politico among Hollywood's rich and powerful elites -- his friends/clients include Rob Reiner, Steve Bing and Brad Pitt, to name just a few. The lawsuit and pairing of Olson and Boies is the brainchild of Chad Griffin, who (along with unnamed backers) is calling the shots and paying Boies and Olson's retainers.

All hail and bow to Mr. Griffin!!!!

From Variety:

Show Biz Consultant Shakes Up Prop 8 Strategy

Standing with them in a Biltmore Hotel ballroom were the plaintiffs in the case, two same sex couples who would like to be married --- Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo --- as well as the person who spearheaded the effort, Chad Griffin. Olson even credited Griffin for contacting him about the case, which is being done through the auspices of a new organization called the American Foundation for Equal Rights.

To anyone who straddles the world of entertainment and politics, Griffin is well-known. A former staffer in the Clinton White House's communications team (he, too, hails from Hope, Arkansas), he moved west after Clinton left office and established a business among the cottage industry of political consultants for prominent names. Griffin's client list includes Steve Bing, Rob Reiner, and Janet and Jerry Zucker, for which he has worked on a host of issues including environmental causes, children's education and stem cell research. But on Prop 8, and on the issue of same-sex marriage in particular, he seems to have taken a much more prominent role and avoided the potential pitfall of anyone who makes the jump from D.C. to Hollywood: You'll be pigeonholed solely as a fund-raiser.

Last year, Griffin did raise money for the Prop 8 campaign, drawing on Reiner, Bing, Ron Burkle and Brad Pitt for support. He was particularly vocal after the defeat, and even sought a meeting from Rev. Rick Warren when President Obama chose him to deliver the invocation at the inauguration. Griffin was executive producer of the documentary "Outrage," Kirby Dick's expose of closeted politicians who vote against gay rights.

Griffin contacted Olson last November, after the passage of Proposition 8, and met with him in person in Washington on Nov. 21. Although Olson had yet to go public on his views on same-sex marriage, apparently Griffin had been tipped to the fact that the lawyer's views tended toward a style of libertarian conservatism. There was a desire to find an equally prominent attorney on the left, which is how Boies joined the case.

"For even one couple to live through even one more day in state-sanctioned second-class citizenship is too long," Griffin said at the press conference.

That Griffin's new organization was able to pull off the pairing of Boies and Olson was itself a novelty that surely draws much more attention to the case, even if they had pursued it on their own. It proved surprising enough that Olson was even forced to defend his motives for pursuing the case given his conservative credentials.

"I hope people don't suspect my motives, but we have had lots and lots of conversations, and I believe this is the right position," Olson said.

From Huffington Post:

Trevor Neilson (Huff Post): "Letter from Birmingham Jail" Olson & Boies Fight for Equal Rights

Griffin has created a facebook page for his newly-formed "American Foundation for Equal Rights"...be sure to stop by and thank him and lend your support!

American Foundation for Equal Rights on Facebook

See the original DU post for links:

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=221&topic_id=134982&mesg_id=135133