Von Belinda Cooper

This week, a California district court began hearing arguments in what could be a groundbreaking case on the constitutionality of same-sex marriage. Remarkably, the two top lawyers on the case hail from opposite ends of the political spectrum: respected conservative lawyer Ted Olson has partnered with a liberal colleague, David Boies, to challenge California’s Proposition 8, the California referendum that overturned the right to same-sex marriage last year (California is one of a number of US states that allows the electorate to vote directly on state ballot initiatives by popular referendum).

The two lawyers were on opposing sides of the 2000 Supreme Court case Bush v. Gore; Olson represented George Bush in the case, which declared Bush the winner of the 2000 elections, and then became Bush’s Solicitor General. Olson lost his wife Barbara in one of the downed planes on 9/11.

The two lawyers are arguing that same-sex marriage is a fundamental, constitutionally-protected right that cannot be restricted by legislation or referendum. Olson and Boies also maintain that banning gay marriage is unconstitutional discrimination, since banning it has no “rational basis” – the minimum test a law must meet.

Olson, who has been harshly criticized by some on the right for his views, has said that “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.” Indeed, many compare the case, which may ultimately end up in the US Supreme Court, to the 1967 Supreme Court case that overturned widespread state laws against interracial marriage. Olson argues that legalizing same-sex marriage would “represent the culmination of our nation’s commitment to equal rights” and that it may be “the last major civil-rights milestone yet to be surpassed in our two-century struggle to attain the goals we set for this nation at its formation.”

See also:
http://www.nytimes.com/2009/08/19/us/19olson.html?_r=2&pagewanted=1
http://bayarea.blogs.nytimes.com/2010/01/14/same-sex-marriage-case-day-4-economics/?scp=8&sq=gay%20marriage&st=cse
http://www.equalrightsfoundation.org/news/text-of-ted-olsons-opening-statement-in-prop-8-trial-as-prepared/
http://www.nytimes.com/2010/01/12/us/12prop8.html