Ted Olson and David Boies, who argued opposite sides of Bush v. Gore, have teamed up to legalize gay marriage by way of the Supreme Court. They are a few wins, appeals and years away from getting there, but the two lawyers are off to a hot start.

Olson and Boies head to court Monday to argue against California’s Proposition 8, which banned same-sex marriage in the state.

Not all gay rights advocates are on board with the timing of this case, because the current crop of judges on the high court is pretty conservative. But it’s not so simple. Jeffrey Toobin’s “The Nine” argues convincingly that some of the conservative justices have nuanced views of homosexuality.

Swing vote Anthony Kennedy, for instance, wrote the majority opinion for Lawrence v. Texas, which decriminalized gay sex. In that opinion, he wrote: “The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. … This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects.” That’s obviously not a vote for gay marriage, but hey, maybe the man has continued to evolve since 2003.

You could say that no one ever won any rights through cowardice, but that might not be fair in this instance. Gay rights advocates have won major battles in the state courts, and the “slow and steady” strategy has been paying off (except for those pesky bans that keep passing all over the place). But as Olson and Boies pointed out when this issue was first raised, the two of them are not exactly new to the whole arguing-before-the-Supreme-Court thing. — PZS


Andrew Koppelman, a professor of constitutional law at Northwestern University, said an appeal is certain no matter who wins in court in San Francisco.

If the appeals court were to side with the ban, the Supreme Court would probably leave it, but a victory by the gay rights advocates in the appeals court would force the Supreme Court to act, since it could not ignore such a momentous change.

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