Former Bush Solicitor General Ted Olson Files Suit Claiming Same-Sex Marriage is Constitutional Right

By Monica Gabriel | June 23, 2009 | 3:37 PM EDT

Theodore B. Olson

( - Attorney David Boies and former Bush administration Solicitor General Theodore Olson have filed a lawsuit in California to overturn voter-approved Proposition 8, which says only male-female marriages are valid in the state, declared unconstitutional so that homosexuals can marry.
Olson and Boies say that Prop. 8 violates the due process and equal protection clauses of the 14th Amendment of the U.S. Constitution, and that homosexuals have a constitutional right to marry.
“Creating a second class of citizens is discrimination plain and simple,” said Olson at a May 27 press conference. “The Constitution of Thomas Jefferson, James Madison, and Abraham Lincoln does not permit it. Proposition 8 denies people fundamental constitutional rights.”
Prop. 8, a ballot initiative passed by a majority of voters in November 2008, amended California’s state constitution to say that “only marriage between a man and a woman is valid or recognized in California.”  On May 26, 2009, the California Supreme Court upheld Prop 8 as a valid amendment to the state’s constitution.
Olson is a member of the Federalist Society, a group of conservative and libertarian attorneys who advocate an “originalist” interpretation of the Constitution. This means that the words of the Constitution should be considered to mean the same thing now that they meant to the people who wrote them.

For an "originalist" interpretation of the Constitution to conclude that the 14th Amendment protects a right to same-sex marriage, it would need to be demonstrated that the people who wrote the 14th Amendment in the late 1860s understood it to mean that.

The lawsuit requests that the court prohibit the enforcement of Prop. 8 and any other related California statutes. It also cites other cases, such as Loving v. Virginia, Romer v. Evans, and Lawrence v. Texas as precedents to support the idea that Prop. 8 is a violation of the rights of homosexual men and women.

“Forty-two years ago, the Supreme Court decided that marriage was a fundamental right of liberty, that the ability, the right to choose the person that you want to marry and to be able to marry the person that you love was a fundamental human right that could not be abridged by the state in a discriminatory manner,” Boies said on the May 28 edition of MSNBC’s Hardball.
“And what the fundamental issue here in this case is, is it discriminatory to say that gays and lesbians, purely because of their sexual orientation, are unable to get married?” he said.  “We think it is. We think that is the central issue in the case. And we think it violates the federal Constitution for California to prohibit gays and lesbians from marriage.”
The lawsuit against Prop. 8 was filed in the U.S.  District Court, Northern District of California in San Francisco, on May 22, 2009, and will be the first time that Boies and Olson have served alongside each other as co-counsel.
Boies and Olson are representing the plaintiffs Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarrillo. Perry and Stier have been in a relationship for nine years and Katami and Zarrillo have been in a relationship for eight years. The plaintiffs are arguing for the right to a state-sanctioned marriage in California.
On the same MSNBC show with Boies, Olson said: “We`re going to use the Equal Protection Clause of the 14th Amendment and the Due Process Clause of the 14th Amendment to argue that individuals are entitled to marry the individual--the person of their choice--and the due process clause and the equal protection clause precludes states from prohibiting same-sex individuals to have the same right to marry as other individuals.”

The 14th Amendment, Section 1, partly reads:  “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Back in March 2000, the California Family Code was amended to include Proposition 22, a ballot initiative similar to Prop 8. Section 300 of the legal Code says, “Marriage is a personal relation arising out of a civil contract between a man and a woman,” and section 308.5, added as a result of Proposition 22, states that, “Only marriage between a man and a woman is valid or recognized in California.”

However, in May 2008, the California Supreme Court ruled (4-3) that California Family Code 300 and 308.5 were unconstitutional, specifically, the codes violated the equal protection clause of the state’s Constitution.
As a consequence, same-sex marriages were permitted and thousands of homosexual couples tied the knot--an estimated 18,000 same-sex marriages. The California Supreme Court’s close ruling, however, energized pro-family activists across the state who succeeded in getting enough signatures to put Proposition 8 on the Nov. 4 ballot.

Prop 8 passed with 52 percent of the vote, amending the state Constitution to read: “Only marriage between a man and a woman is valid or recognized in California.” Because it is now part of the Constitution for California, the Supreme Court there cannot overturn it or invalidate it--and, in fact, the Court has said that Prop 8 is a valid amendment to the Constitution.

David Boies

Olson and Boies were retained by the group American Foundation for Equal Rights, a liberal, pro-homosexual group, to file their lawsuit. In their suit, the lawyers state that the “defendants” – Gov. Arnold Schwarzenegger and other state officials -- “cannot meet their burden of demonstrating that they have compelling reason for consigning gay and lesbian individuals to the separate-but-inherently-unequal institution of domestic partnership.”
“Indeed, Prop. 8 does not even further a single legitimate state interest,” the lawsuit states.
The plaintiffs are in a “committed relationship” and want to express their love for each other “by getting married and obtaining official sanction for their family from the State,” reads the lawsuit. “But Prop. 8 denies them that right in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the United States Constitution.”
Randy Thomasson, president of, said that the state has a legitimate interest in keeping the traditional definition of family intact. 
“The state of California historically has known and the data show, that children do best health wise, emotionally, educationally…with a married mother and father,” Thomasson told “So the state has preferred this because it has to do with what’s in the best interest of children.”
The lawsuit denies the validity of the procreation argument as a defense of Prop 8.
“Nor can Defendants rely on an asserted interest in promoting procreation to establish the constitutionality of Proposition 8,” according to Olson and Boies.   “The promotion of procreation is not a remotely sufficient ground for preventing a couple from getting married.”
Jordan Lorence, senior counsel of the Alliance Defense Fund, which focuses on religious liberty issues, suggested that Olson’s “originalist” view is flawed when interpreting the intent of the drafters of the 14th Amendment.
“To say that there is a constitutional right for individuals to force a government to accept their re-definition of marriage, to me is a very extreme and incorrect view of the Constitution,” Lorence told  “I think that it is very clear that the drafters of any provisions of the Constitution never intended to create a right to same-sex marriage.”
“To say that those provisions do indeed protect a right to same-sex marriage would be shocking to the original Founders and the drafters of the subsequent amendments of the Constitution,” said Lorence.
Matt Krause, litigation attorney for Liberty Counsel, a conservative group, was critical of Olson’s claim that “marriage is a supremely important social institution.”
“It’s pretty amazing that they would say that ‘marriage is a supremely important institution’ yet they want to radically change it to fit their own definition,” Krause told
“I’m not sure why they would be pushing so hard for it, especially a guy like Ted Olson who is known as a federalist, as somebody who stays true to the text of the Constitution and seems to be right on a lot of these issues,” said Krause.
The lawsuit filed by Olson and Bois will be heard before the California District Court July 2, 2009.