Former U.S. solicitor general Theodore B. Olson and David Boies, who argued opposite each other in Bush v. Gore, are now teaming up to “represent two same-sex couples filing suit after being denied marriage licenses because of Proposition 8. Their suit, to be filed in U.S. District Court in California, calls for an injunction against the proposition, allowing immediate reinstatement of marriage rights for same-sex couples.” The American Foundation for Equal Rights, which is leading the case, notes that it is the first time that Olson and Boies have “served alongside each other as co-counsel.” “For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals,” Olson told The Advocate in an interview. A copy of the 10-page complaint is here.
In an interview with the Washington Examiner’s Byron York, a conservative, Olson pushed back hard against the argument that if he succeeded, he would be overturning “the legitimately expressed will of the people”:
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.”