Drew Clark: Gay marriage finds friendly home at Sundance, but only part of the story told

Published: Saturday, Jan. 18 2014 10:00 p.m. MST

Prominently featured in the film are the two couples that challenged the law in California, their high-profile lawyers Olson and the liberal Boies. The attorneys took opposite sides before the Supreme Court on the Bush v. Gore lawsuit over the results of the 2000 election. After Olson's client won, Bush named him solicitor general, responsible for defending the government's position before the high court.

"The Case Against 8" culminates in California weddings by Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo, after last June's decision by the U.S. Supreme Court decision, Hollingsworth v.Perry.

Yet, ironically, the Supreme Court never ruled for the California couples. Because the governor and attorney general of California refused to defend their state's law, the defenders of Proposition 8 lacked standing in the eyes of the law.

Instead, in a separate case last June, the high court invalidated a congressional law denying federal benefits to same-sex marriages authorized under New York's state law.

The combination of the two decisions means that the Supreme Court has interpreted the Constitution to permit but not to require states to authorize same-gender marriages.

Betraying Federalism?

The Sundance crowd was extensive and jubilant in its praise of the 1,300 Utah marriages, issued after U.S. District Court Judge Robert J. Shelby stuck down the provisions of Utah's Constitution that declare marriage to be between a man and a woman.

The U.S. Supreme Court has since stayed Shelby's ruling, pending further court challenges.

The case, together with a decision this past week by a federal judge in Oklahoma, will raise the constitutional stakes for whatever case eventually makes its way to the high court. Such a case could well be Utah's defense of its Amendment 3, the 2004 voter-approved amendment which defined marriage traditionally, and which passed 66-34 percent.

And it is on these grounds that many conservatives are upset with Ted Olson. Through his high-profile association with the Federalist Society, a group of attorneys defending a clearly articulated role for the judiciary, he helped articulate the philosophy of "strict constructionalism" of the Constitution.

They say Olson, of all people, should understand the dangers of the high court treading into decision-making on subjects like marriage, which is not mentioned in the Constitution.

"What Ted Olson did was despicable on several counts," said John Eastman, law professor at the Chapman School of Law in Southern California. He's also Chairman of the Federalism and Separation of Powers Practice Group of the Federalist Society.

"His whole career was arguing against an activist judiciary making up rights," Eastman said in an interview. "His whole career was against a federal takeover of state sovereignty. His whole career was spent limiting the effect of 14th Amendment."

While many conservatives regard the 14th Amendment as appropriately granting civil rights to victims of racial discrimination, they see the high court as having excessively broadening it through cases, like the 1972 Roe v. Wade, guaranteeing a right to abortion.

"All three of those things he threw under the bus to further the homosexual marriage argument," said Eastman. Olson "went against every single major principle he had been fighting for through the Federalist Society in his career."

Short-Circuiting Debate

Many of these Federalists say that the effort to constitutionally require gay marriage short-circuits the democratic debate about whether states should adopt such a public policy, and how such statutes will impact other family and domestic laws.

"Since the early 1960s, the liberal movement has attempted to use the court toward victory for their causes when they have been unable to win them in forums of democracy," said Robert George, a professor of jurisprudence at Princeton University.

He called this strategy an effort to play up "the dogmas of the sexual revolution," such as Roe v. Wade.

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