This is the one for all the marbles, folks – either they succeed in using the federal courts to impose gay marriage nationwide, or they hand the victory to their opponents.

Former Bush administration solicitor general Theodore Olson is part of a team that has filed suit in federal court in California seeking to overturn Proposition 8 and re-establish the right of same-sex couples to marry.

The suit argues that the state's marriage ban, upheld Tuesday by the California Supreme Court, violates the federal constitutional right for same-sex couples to marry. The complaint was filed Friday, and Olson and co-counsel David Boies -- who argued against Olson in the Bush v. Gore case -- will hold a news conference in Los Angeles Wednesday to explain the case. The conference will feature the two same-sex couples on whose behalf Olson filed suit.

The suit also asks the U.S. District Court for the Northern District of California to issue an injunction that would stop enforcement of Proposition 8 and allow same-sex couples to marry while the case is being decided.

"I personally think it is time that we as a nation get past distinguishing people on the basis of sexual orientation, and that a grave injustice is being done to people by making these distinctions," Olson told me Tuesday night. "I thought their cause was just."

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 enjoyÂ…I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Technically, the suit Olson has filed is against the governor, attorney general, and other officials of the state of California. Ultimately, Olson said, it's a question that will be decided in Washington, by the Supreme Court. "This is an issue that will get to the Supreme Court, and I think it could well be this case," he said.

Now let’s make it clear what this is about – it is about federalizing gay marriage. That Fourteenth Amendment claim is nothing short of a demand that the federal courts re-write the marriage laws of every state – an act of crass judicial activism that would constitute a case of macro-evolution of the “living Constitution”. And let there be no doubt that such a ruling would constitute the overturning of separate decisions by the people of thirty different states, federalizing as a right what has always been a state matter.

Let me deal with one of Olson’s arguments – “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.” He is, of course, correct in that observation – but when one considers that the purpose of the Fourteenth Amendment was to eliminate invidious racial discrimination, it is obvious that the decision in such a case would be compelled by the language and the history of the amendment. However, the redefinition of marriage from the traditional (and biologically based) “one man, one woman” configuration to “any two adults” does something different by actually altering the essentials of marriage.

What’s more, a decision in favor of Boies & Olson and their clients will have one additional effect – it will delegitimize the federal courts in the eyes of millions of Americans. And once our courts and their decisions are seen as lacking legitimacy, the legitimacy of the other two branches is also endangered. Will the issue of gay marriage ultimately be the one upon which the survival or dissolution of the republic hinges?

Ed Morrissey, however, points out a real possibility of a very different outcome.

However, Olson may have a more limited equal-protection case with the limited class of relief the California Supreme Court created in its decision. In this case, we have 36,000 citizens in single-sex marriages recognized by the state, while refusing to recognize any others. The only delimiter is the date of the decision. A federal court might find that a violation of the equal-protection clause and overturn Proposition 8, or at least the ruling. The danger here for Olson is that a federal court might take action that invalidates those existing marriages rather than forcing California to recognize gay marriage altogether.

Wouldn’t that be special. But my fear is that the those members of the court who look for “evolving standards” and “trends” will decide that five states approving gay marriage will trump the thirty that have come down firmly on the other side. And if that happens, it may well mean the end of our republic as we know it.

Posted by: Greg at 10:01 AM | No Comments | Add Comment
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