Constitutional Law

Onetime Opponents Olson and Boies Join to Challenge Gay-Marriage Ban


Former solicitor general Ted Olson, who represented George W. Bush in the controversial Bush v. Gore lawsuit, has joined forces with his legal opponent in the case, David Boies, in a suit seeking to overturn California’s gay-marriage ban.

The duo filed a motion Wednesday for a preliminary injunction barring California’s Proposition 8 from taking effect, according to stories in the Recorder, the San Jose Mercury News and the New York Times. The federal lawsuit, filed in San Francisco, argues the voter initiative banning gay marriage violates equal protection and due process guarantees as well as protections under the federal civil rights statute, Section 1983, SCOTUSblog reports.

Olson said in a press conference he expects the case to eventually reach the U.S. Supreme Court. “Creating a second class of citizens is discrimination, plain and simple,” Olson said. “We believe the courts are ready to grant equality to citizens based on sexual orientation.”

Gay rights activists weren’t so sure.

“We only have one shot at the U.S. Supreme Court,” Shannon Minter, legal director for the San Francisco-based National Center for Lesbian Rights, said in an e-mail sent to the Recorder. “And any attorneys bringing a case that will affect the freedom and legal status of an entire community bear a heavy responsibility to be certain they have fully considered the consequences of pulling the trigger on a federal challenge.”

The motion was filed after the California Supreme Court upheld the voter initiative on Tuesday. The referendum had overturned an earlier state supreme court ruling finding a state constitutional right to gay marriage. SCOTUSblog points out that both California rulings were based on state law rather than federal constitutional rights.

The federal suit relies on three rulings by the U.S. Supreme Court, SCOTUSblog says: the 1967 decision Loving v. Virginia that said state bans on interracial marriage are unconstitutional, the 1967 decision Romer v. Evans striking down a state constitutional amendment barring gay rights laws, and Lawrence v. Texas overturning a law barring homosexual sodomy.

Boies is the founder and chairman of Boies, Schiller & Flexner. Olson is a partner at Gibson, Dunn & Crutcher.

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