Eight and a half years after their epic partisan battle over the fate of the 2000 presidential election, the lawyers David Boies and Theodore B. Olson appeared on the same team on Wednesday as co-counsel in a federal lawsuit that has nothing to do with hanging chads, butterfly ballots or Electoral College votes.

Their mutual goal: overturning Proposition 8, California’s freshly affirmed ban on same-sex marriage. It is a fight that jolted many gay rights advocates — and irritated more than a few — but that Mr. Boies and Mr. Olson said was important enough to, temporarily at least, set aside their political differences.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process. [...]

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.

“I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back. [...]

“Creating a second class of citizens is discrimination, plain and simple,” said Mr. Olson, who served as solicitor general under Mr. Bush. “The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it.”

I know some people (I'm talking to you, ACLU) are afraid to make a federal case about this, but if not now, when? Ten years from now? Twenty? Fifty? I say there is never a good time to fight for equal protection for American citizens who are being discriminated against under our laws. You think the lawyers in Brown v. Board of Education thought they had a slam dunk back in 1954? You think the majority of the population supported integrated schools in the fifties, and integrated workplaces, movie theaters, buses, restaurants, and so forth? Hell no, brothers and sisters. But thanks to Thurgood Marshall they took the chance that the courts would do the right thing, and I think Boies and Olson are doing the right thing fifty-five years later. A dyed in the wool liberal and a radical conservative who agree that civil liberties should mean something in this country, and that government of the people, by the people, for the people should mean all the people, even people that homophobic bigots despise and denigrate.

So I for one support them. Godspeed, David and Ted. Doing the right thing is never easy. But if no one ever took that chance, where would we be? Still a country which countenanced slavery, child labor, lynching and the denial of basic human rights. Still a country of "sundown towns" and restrictive racial covenants. Still a country in which I would not have been allowed to marry my wife because she is a the daughter of Japanese immigrants, and I the descendant of English, Irish and German ones. After eight years of seeing our Constitution trampled on by men of low character, its good to see someone with the courage to say, that our ideals, our "freedoms" mean more than just the freedom by majorities to condemn other people, to hold them down and oppress them. More than just the freedom to hate. Liberty is either for all of our people, or it's for no one.

So thanks Ted. Thank you very much. I'll probably disagree with you on everything else you ever do in your political and professional career, but this time you deserve my gratitude.

Update [2009-5-28 11:35:54 by Steven D]: Here is the take of Pam Spaulding of Pam's House Blend on the Boies/Olson lawsuit for your consideration:

OK, now there is another reason why it can be argued that a federal case has merit at this time, and it needs discussion. Regardless of the timing of the case, part of what is going on here is by filing at the federal level it is a direct challenge to this White House. The Obama admin has tried mightily (and ridiculously) to keep this a states' rights issue -- to the point of believing there's no reason to even have to publicly recognize the progress and setbacks.

In my opinion, this is also a part of the motivation behind the Olsen/Boies lawsuit. After all -- how can you have a President of the United States who is a constitutional scholar out there saying "God is in the mix" and tossing off "it's an issue best left to the states"? After all, his parents' relationship was illegal in many states, and Loving v. Virginia was needed to nullify all of those state bans.

Again, this is a political problem of candidate and President Obama's own making that is now blowing up in his administration's face. I'm not surprised that this is happening; I am kind of surprised it's happening so soon -- but we, the LGBT orgs, and the big brains at 1600 Pennsylvania Avenue do not have the ability to shut down the constant equality questions being bombarded at Robert Gibbs or a lawsuit like this.

I'm not arguing that Boies and Olson are pursuing the right strategic path, mind you, but I understand the sentiment and frustration behind it -- I'm just tossing this out there as a discussion point, since we are all tired of the disingenuous BS coming out of the Obama White House through the clownish, embarrassing dodges of Press Secretary Robert Gibbs nearly every day. Also, we don't see any of the LGBT orgs criticizing the non-answers and evasive maneuvers coming out in the name of our "fierce advocate" at these pressers -- do you think this silence would have occurred under Bush? [...]

And about all of the questions about who's funding the Boies/Olson case. I've heard that it's prominent wealthy progressives bankrolling the American Foundation for Equal Rights, so that would deep-six the Olson right wing conspiracy stories.

As they say in the trade, go read the whole thing. Pam lays out all the arguments for and against the lawsuit with equanimity and her usual thoroughness.