Ted Olson’s Supreme Court Adventure

The New York Times has a running commentary on the federal lawsuit filed by Ted Olson and David Boise seeking to have Proposition 8 struck down as violating of the U. S. Constitution. The basis of the running commentary is whether or not now is the time for such a lawsuit and whether or not there are the five (5) votes on the Supreme Court to prevail. Among those making comments are three law professors - not always the best authorities on real life issues - and Evan Wolfson of Freedom to Marry. Not surprisingly, the law professors are nay sayers and opine that now is not yet the time for such a lawsuit and basically counsel waiting - something that is easy to argue when you are not the one having your rights and equality abrogated. Evan Wolfson takes a pragmatic approach and acknowledges that there have already been successful constitutional argument based cases at the state level and that there ARE other marriage related cases in the lower federal courts. Therefore, the issue is focusing on how to win rather than wringing one's hands and telling other to wait patiently. Here are a few samplings of the arguments:

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Not Now - Eugene Volokh is a professor of law at the University of California, Los Angeles, and a former clerk for Supreme Court Justice Sandra Day O’Connor. He is the founder and co-author of The Volokh Conspiracy blog.

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Is it sensible for gay rights advocates to ask the U.S. Supreme Court to recognize, in the next few years, a federal constitutional right to same-sex marriage?

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I doubt it, because I doubt five justices will agree with the claim. Some justices — probably at least four and maybe five — probably think the opposite-sex-only marriage rules are clearly constitutional, because nothing in the constitutional text or our nation’s traditions prohibits such rules. And even some of the justices who might be open to a different view are unlikely to want to invalidate the laws of more than 40 states.

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How to Make the Timing Right - Evan Wolfson is executive director of Freedom to Marry, and author of “Why Marriage Matters: America, Equality, and Gay People’s Right to Marry.”

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If the question is “Should the Supreme Court strike down the cruel and discriminatory exclusion of committed same-sex couples from marriage, an exclusion that serves no legitimate government interest?,” the answer is yes — and as soon as possible for couples who are doing the work of marriage in their day-to-day lives and who share an equal need for the protections and responsibilities marriage brings.

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The reality is, there are several freedom to marry cases already making their way through the courts, in addition to the case against Proposition 8 brought by Ted Olson, and his adversary in Bush v. Gore, David Boies. These include the challenge to the so-called “Defense of Marriage Act” brought by married couples represented by Gay & Lesbian Advocates & Defenders (GLAD), which won the Massachusetts and Connecticut freedom to marry cases. The Attorney General of Massachusetts also filed a suit on behalf of the state’s interest in not being forced to discriminate against its own married couples.

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So in that sense, the question, “Is this the right time?” is no longer pertinent. The more important question is, “How can we assure that when a case reaches the Supreme Court, the court is ready to do right?”