Ted Olson, former solicitor general for President George W. Bush and stalwart of the conservative establishment, shocked the legal world three years ago when he announced his crusade on behalf of same-sex marriage.
Teaming with David Boies, his Democratic adversary in Bush v. Gore, Olson went to court to overturn California’s Proposition 8, in which voters changed the state constitution to recognize marriage only between a man and a woman. The goal, Olson said, was to establish that there is a federal constitutional right for same-sex couples to marry no matter where they live.
Olson has won each step of the way, but his last legal victory in that quest gave the former without the latter.
The U.S. Court of Appeals for the 9th Circuit in San Francisco overturned Proposition 8, but said there was no reason to decide whether the Constitution mandates that same-sex couples have the right to marry.
Olson reluctantly told the Supreme Court recently there was no reason to disturb the appeals court ruling, which effectively limits the right to marry to California and leaves the larger issue unresolved.
“It was with strong mixed emotions, and I think you can tell that” by reading the filing, Olson said in an interview.
“But in the end, we represent real, live people, and if the court doesn’t take the case, we’ve won and our clients and thousands of others in California can get married.”
It is all but inevitable that the Supreme Court will have something to say this term on the topic of same-sex marriage.
Besides the appeal brought by proponents of Prop 8, there are a slew of cases awaiting the justices regarding the constitutionality of part of the 1996 federal Defense of Marriage Act. It forbids the federal government from extending benefits to same-sex couples legally married in the states that provide for it.
A string of federal district judges and the U.S. Court of Appeals for the 1st Circuit have said the law violates the equal protection clause of the Constitution. The Obama administration also says the law is unconstitutional, leaving defense of the law signed by President Bill Clinton to a group formed by House Republicans.
But the DOMA challenges have nothing to do with the constitutional right to marry, since the plaintiffs in those cases were already married. Six states and the District of Columbia extend such privileges to same-sex couples, and voters in other states, including Maryland, will consider this issue this fall.
The effort by Olson and Boies was designed to bypass such a piecemeal approach. It sought recognition of a constitutional right to marry. Two years ago, a federal judge in San Francisco agreed, saying marriage was a fundamental right that was violated when voters attempted to “enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”
But the 9th Circuit took a different approach. It said there was no reason to look at the broader question.
Instead, it focused on the fact that gay couples in California for a brief time had the right to marry — 18,000 took the leap after the state supreme court in 2008 said they could not be denied — and that California voters took the right away.
“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause” of the federal Constitution, the court ruled in a 2 to 1 vote.
The panel said its decision was based on a 1996 Supreme Court ruling that struck an amendment to the Colorado Constitution that prohibited state or local governments from outlawing discrimination against gays. It was in response to local governments that had extended such protection.
Prop 8 proponents have appealed the 9th Circuit decision, but Olson and Boies argue that is unwarranted. The ruling faithfully applies the Supreme Court’s Colorado decision in Romer v. Evans, they say, and there is no lower court conflicts for the justices to settle.
Still, the crusaders can’t quite give up the fight. They also tell the justices that same-sex marriage is the “defining civil rights issue of our time” and that their case “is an attractive vehicle for approaching — if not definitively resolving — that issue.”
“This case comes to this court on a fully developed factual record — indeed, the most comprehensive record ever developed in a case challenging a restriction on the right to marry,” Olson and Boies wrote. “Moreover, quite fortuitously, the case comes to the court contemporaneously with challenges to the federal Defense of Marriage Act.”
Many gay rights groups have long held that it is better for their cause if the court first addresses DOMA and leaves the fight over the constitutional right to marry for another day. Indeed, officials from San Francisco, who are on Olson’s side, counseled just that approach.
“The landscape of legal rights and recognition for lesbian and gay families continues to mature,” the officials said in their brief, and it would be better to wait for other lower courts to weigh in.
Olson said he could not presume to guess what the justices might do this fall when they consider the cases. His on-the-one-hand, on-the-other filing was a delicate matter, he said.
He and Boies wanted to preserve their clients’ victory, he said, while “saying what we wish we had said” if the justices decide to review the matter after all.
For previous High Court columns, go to washingtonpost.com/fedpage.