Ted Olson Goes To Court For Gay Marriage--The Shot Heard Round The Neocon World

I don't normally post twice in a day, but this article is too good to pass up. The two attorneys on opposite sides of Gore v Bush have teamed up to argue against the constitutionality of Prop 8, and they will do it on the federal level:

Ted Olson goes to court on behalf of gay marriage
By: Byron YorkChief Political Correspondent05/26/09 9:59 PM EDT

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

I asked Olson about the objections of conservatives who will argue that he is asking a court to overturn the legitimately-expressed will of the people of California. "It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.

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I have to admit there's a certain irony in Ted Olson, the man who did more to give us eight years of Bush than any other conservative, arguing gay marriage rights. It is however, the logical conservative position, at least constitutionally. As he states, an individuals basic rights can not be taken away by vote. Prop 8 is not just a gay issue, it's an everybody issue, and as such should be struck down.

It should also be struck down because it effectively enacted a discriminatory state policy based solely in religious scruples which are not universal to all religious traditions, even with in Christianity, and certainly not universal to a pluralistic secular society. It's akin to banning the sale of any form of birth control just because California had enough Catholics to vote it into law. When it comes to core individual rights, the Constitution mandates the protection of minority rights from the tyranny of a temporary majority, precisely because the majority point of view tends to be temporary.

Ted Olson's repudiation of the gay marriage aspect of the culture wars is most likely not going to sit well with the religious right. Perhaps it's indicative of real Republican conservatives trying to take back their party before it's completely lost to the fringe. This would be a good thing. In the meantime, the silence from the Obama White House on Prop 8 is suspiciously deafening.