Legal Commentary

I have to confess that I never thought the Prop 8 challenges in state court had a legal leg to stand on.  I'm not happy with the outcome of the case because I take no pleasure in my state's denying gays the equality they so obviously deserve.  But the consequences of the court striking down Prop 8 under the theories offered by the opponents of Prop 8 in state court would really have been quite serious: coming down the other way would essentially have made a mockery of governing law in this area and would have been itself a quite serious constitutional revision of direct democracy's role in California's governance and state constitution.  Many people don't like direct democracy and would love to undermine it in any way possible.  But I didn't think this was the right way to revise California's constitution.  I'm a gay rights advocate.  Not this way, though.  And I had assumed we'd win at the polls soon enough. 

But I confess I do take great pleasure in Ted Olson taking on the case.  The Bush lawyer in Bush v. Gore is now filing a federal lawsuit to have Prop 8 overturned on federal grounds: that denying same-sex couples the right to marry violates the federal Constitution.  And he's looking forward to arguing it in front of his buddies at the Supreme Court.  Now that argument just might be a winner -- and there is certainly a firm legal footing to support that argument even if it loses the day.  One can still worry about backlash, about judicial role, and about whether gay rights advocates should go this route instead of a more piecemeal legislative and hearts-and-minds campaign.  But the nerdy lawyer in me has no qualms about this lawsuit the way I had serious reservations about the legal house of cards upon which the state argument was made.  And I'm delighted by the courage Ted Olson is showing in making the right argument against Prop 8, even if it alienates him from large segments of the Right and even if the Left wasn't quite ready to take the gamble.  Ted Olson is now making the argument gays strategically avoided, the Republicans can't stomach, and even our audacious President is too scared to make.  Quite an interesting turn of events.