The California Proposition 8 Case: Olson and Boies

[micatala]

http://www.pbs.org/moyers/journal/02262010/profile.html


Bill Moyers interviewed Theodore Olson and David Boies, the chief lawyers handling the suit against California's Proposition 8, this past Friday on PBS. Prop 8 was the ballot initiative banning gay marriage in CA that narrowly passed in the fall of 2008.

Olson is a prominent conservative, famous for handling the Republican case in Bush V. Gore.

Boies is on the opposite side of the political spectrum, and was on the opposite side of the Bush v. Gore case.

They are teaming up to represent one male and one female same-sex couples, a case that is likely to end up in the Supreme Court.

I would certainly recommend the full interview if you have time.


One main point of their legal strategy is to hammer home that the Supreme Court has repeatedly held that marriage is a fundamental individual right, and that extending this right to gays is not creating a new right, but simply treating gays equally with respect to an already firmly established right.

Conservatives, just like liberals, rely on the Supreme Court to protect the rule of law, to protect our liberties, to look at a law and decide whether or not it fits within the Constitution. And I think the point that's really important here, when you're thinking about judicial activism, is that this is not a new right. Nobody is saying, 'Go find in the Constitution the right to get married.' Everybody, unanimous Supreme Court, says there's a right to get married, a fundamental right to get married. The question is whether you can discriminate against certain people based on their sexual orientation. And the issue of prohibiting discrimination has never in my view been looked as a test of judicial activism. That's not liberal, that's not conservative. That's not Republican or Democrat. That's simply an American Constitutional civil right.

They noted that the Supreme Court has said that even prison inmates cannot be prevented from being married.


In the interview, they went on to pretty well demolish any legal justification for Proposition 8. Of course, they still have to win their case, and eventually in front of the SCOTUS.


Questions for debate:

1) Are Olson and Boies correct. Should the suit go forward regardless of the risk of losing?

2) How good is their case?

3) Are the likely to win?




The suit itself is entitled Perry vs. Schwarzenegger, even though neither the governor nor his attorney general are going to defend the proposition. The AG even noted he felt Prop 8 was unconstitutional.

See http://www.equalrightsfoundation.org/ou ... rzenegger/
for more background.


See http://www.newyorker.com/reporting/2010 ... act_talbot
for a New Yorker article on the suit.

[Cephus]

That's happening in some public schools with very young children.

Regardless, it had nothing whatsoever to do with Prop 8, there was nothing in Prop 8 about education whatsoever. It was a bald-faced lie.

How is it illegal? Mormon money is bad, but money from gay activists is good?

It was money from outside the state, used to fund state politics. That is illegal in most places.

[Lux]

The majority oppose gay marriage. Why oppose your opinion on them?

I'm not trying to impose my opinion on anyone. I'm trying to point out that the "majority" (by a 2% difference) shouldn't have the right to oppress a minority.

[Snipped the article, too long]

I have to be honest with you. I'm having a very hard time believing that 28% or homosexuals have had 1000+ sexual partners by the time they are 25. It seems extremely unlikely to me. But, since you kindly cited a source, I'll assume for the sake of debate that said source is correct.

You said that homosexual sex shortens one's lifespan as much as smoking. This is incorrect.
What shortens one's lifespan is unprotected, reckless, irresponsible sex. Be it with a same sex partner, different sex partner, or both.
It is possible to contract an STD from having homosexual sex. True. Isn't it also true that it is possible to have sex with a person of your same sex and not contract an STD if using proper barrier methods and caution?
So, what should we teach kids (aside from your personal religious views, of course as a parent you may teach your kids whatever you wish)? That homosexuality is terrible and dangerous, or that sex can lead to STDs if practiced promiscuously and without barrier methods?

[East of Eden]

The majority oppose gay marriage. Why oppose your opinion on them?

I'm not trying to impose my opinion on anyone. I'm trying to point out that the "majority" (by a 2% difference) shouldn't have the right to oppress a minority.

[Snipped the article, too long]

I have to be honest with you. I'm having a very hard time believing that 28% or homosexuals have had 1000+ sexual partners by the time they are 25. It seems extremely unlikely to me. But, since you kindly cited a source, I'll assume for the sake of debate that said source is correct.

You said that homosexual sex shortens one's lifespan as much as smoking. This is incorrect.
What shortens one's lifespan is unprotected, reckless, irresponsible sex. Be it with a same sex partner, different sex partner, or both.
It is possible to contract an STD from having homosexual sex. True. Isn't it also true that it is possible to have sex with a person of your same sex and not contract an STD if using proper barrier methods and caution?
So, what should we teach kids (aside from your personal religious views, of course as a parent you may teach your kids whatever you wish)? That homosexuality is terrible and dangerous, or that sex can lead to STDs if practiced promiscuously and without barrier methods?

Why do the schools have to say anything about homosexuality? The vast majority of students will not become gay.

[East of Eden]

That is a fallacy know as argumentum ad antiquitatem. It is right because it is an old and cherished tradition.

All those non-Christian societies thought it to be common sense.

Do we ban all behaviors which are known to spread disease?

So now voting against same-sex marriage is the same as wanting to ban homosexuality. It's like trying to hit a moving target here.

And the relevance of this is? Lots of married couples cannot procreate.

For most it is a possibility, it is an impossibility for all gay couples.

No, they need good loving parents.

That about sums up our age, the obvious needs to be explained. Unlike you, I'm not willing to sacrifice kids for the sake of this wierd experiment. Few children would choose it.

Yes, and as soon as you come up with valid secular reasons for the prohibition of gay marriage, we'll be all ears.

It's been done.

I think that I have asked before. Do you know of any recognized expert on US constitutional law who agrees with your rather narrow interpretation? The courts do not.

So why our national motto, among many other instances?

It is an issue of justice. Justice is one of the aims of the US Constitution.

And 52% of CA votors disagree with you. You lose.

As I though, homosexuality is not being taught in kindergartens. Toleration of those who are homosexual is being taught.

No, it is being promoted as a legitimate lifestyle, when in the opinion of many it is a perverted, deadly one.

Gay sex does not shorten lifespans. Unsafe sex does. Therefore, it is important that we teach our children, before they become sexually active, what sexual behaviors are particularly unsafe.

Unsafe, promiscous sex seems to be part and parcel of the gay lifestyle. Get back to us when that changes.

But they oppose measures to teach tolerance in the classroom towards homosexuals. They oppose measures aimed at reducing the violence towards the gay community. Sadly, it is not a bogeyman. Gay bashing is a serious crime, aided and abetted by the religious right who condemn gays to the wrath of God.

The real dangers to gays is from self-inflicted diseases, not these attacks that are about as common as lighting strikes.

Holy Non Sequitur Batman! Where have I equated the gay issue with race? East of Eden claims that "Chosen behavior is not a human rights issue". I list a number of human rights issues directly related to human rights and suddenly, out of the blue, comes the race card. It is hard to keep up.

Stop being an attention whore. You may not have equated it with race, but plenty here have tried.

[McCulloch]

Why do the schools have to say anything about homosexuality? The vast majority of students will not become gay.

But the vast majority will know someone who is gay.

All those non-Christian societies thought it to be common sense.

Yes, they did. There are many common ancient ideas which have become outdated.

Do we ban all behaviors which are known to spread disease?

So now voting against same-sex marriage is the same as wanting to ban homosexuality. It's like trying to hit a moving target here.

It is refusing to provide state sanctioned recognition of their status, because, presumably they spread disease.

And the relevance of this is? Lots of married couples cannot procreate.

For most it is a possibility, it is an impossibility for all gay couples.

Are you advocating that if a couple cannot procreate then they should not be allowed to marry? How about annulling any marriage that fails to produce children, that way each of them can try again? Maybe it should be a precondition of the wedding license that the bride be pregnant.

No, they need good loving parents.

That about sums up our age, the obvious needs to be explained. Unlike you, I'm not willing to sacrifice kids for the sake of this weird experiment. Few children would choose it.

You've taken a poll?

And 52% of CA votors disagree with you. You lose.

A slim majority in a single referendum agree not to extend recognition to a traditionally marginalized group. Not a lose, just a set-back.

As I though, homosexuality is not being taught in kindergartens. Toleration of those who are homosexual is being taught.

No, it is being promoted as a legitimate lifestyle, when in the opinion of many it is a perverted, deadly one.

Your religion based intolerant opinion is noted. There are those who believe that the eating of meat is a perverted unhealthy lifestyle. Should the schools not teach toleration of meat-eaters because of that?

Unsafe, promiscous sex seems to be part and parcel of the gay lifestyle. Get back to us when that changes.

It is changing. Gay people getting accepted by society and being recognized for who they are is changing that.

But they oppose measures to teach tolerance in the classroom towards homosexuals. They oppose measures aimed at reducing the violence towards the gay community. Sadly, it is not a bogeyman. Gay bashing is a serious crime, aided and abetted by the religious right who condemn gays to the wrath of God.

The real dangers to gays is from self-inflicted diseases, not these attacks that are about as common as lighting strikes.

In the extreme, yes they are not that common. However, I have yet to meet a gay man over the age of thirty who has not either been beat up or threatened with violence because of his sexual orientation.

You may not have equated it [the gay issue] with race, but plenty here have tried.

Perhaps because there are so many parallels. People do not choose their race or their sexual orientation. Society has been slow to accept the aspirations of some due to their race or sexual orientation.

[East of Eden]

But the vast majority will know someone who is gay.

And the vast majority will know someone who is a Christian, should we cover that too?

Yes, they did. There are many common ancient ideas which have become outdated.

The age of an idea has nothing to do with it's truth. Better an old truth than a new lie. What is now new will be ancient someday.

Are you advocating that if a couple cannot procreate then they should not be allowed to marry? How about annulling any marriage that fails to produce children, that way each of them can try again? Maybe it should be a precondition of the wedding license that the bride be pregnant.

At least if they chose to a heterosexual couple could adopt and the children would have a real mother and father.

You've taken a poll?

Have you?

A slim majority in a single referendum agree not to extend recognition to a traditionally marginalized group. Not a lose, just a set-back.

Off-topic, but exactly how I feel about Obama's election.

Your religion based intolerant opinion is noted.

And your religiophobia is noted.

There are those who believe that the eating of meat is a perverted unhealthy lifestyle. Should the schools not teach toleration of meat-eaters because of that?

How about if we tell Jewish and Muslim kids in public schools that that ban on pork is really silly, intolerant, and they need to get over it. Would that be OK?

It is changing. Gay people getting accepted by society and being recognized for who they are is changing that.

Part of the West's ongoing rejection of God, with attendant consequences. It's the myth of personal autonomy.

In the extreme, yes they are not that common. However, I have yet to meet a gay man over the age of thirty who has not either been beat up or threatened with violence because of his sexual orientation.

That is wrong, and un-Christian. I would say that according to my link there is a lot of violence in gay relationships.

Perhaps because there are so many parallels. People do not choose their race or their sexual orientation. Society has been slow to accept the aspirations of some due to their race or sexual orientation.

......or religious beliefs.

[McCulloch]

But the vast majority will know someone who is gay.

And the vast majority will know someone who is a Christian, should we cover that too?

Absolutely! We should teach our children not to beat up on those who believe in the Christian God and that if they believe that wine turns to blood, it does not make them less of a human.

You've taken a poll?

Have you?

But then again, I have not made a claim that the children of gay couples would prefer it otherwise.

A slim majority in a single referendum agree not to extend recognition to a traditionally marginalized group. Not a lose, just a set-back.

Off-topic, but exactly how I feel about Obama's election.

I see how you feel:

[mrow][mcol]Republican[mcol]Democratic[row]2000[col][right] 50,456,002 (47.9%)[/right][col][right] 50,999,897 (48.4%)[/right][col]The democrats win the popular vote, but the republican gets in.[row]2004[col][right] 62,040,610 (50.7%)[/right][col][right] 59,028,444 (48.3%)[/right][col]A mere 2.4% advantage for an incumbent during a war. [row]2008[col][right] 59,934,814 (45.7%)[/right][col][right] 69,456,897 (52.9%)[/right][col]7.2% lead.

There are those who believe that the eating of meat is a perverted unhealthy lifestyle. Should the schools not teach toleration of meat-eaters because of that?

How about if we tell Jewish and Muslim kids in public schools that that ban on pork is really silly, intolerant, and they need to get over it. Would that be OK?

No. How about that we teach Jewish and Muslim kids in public schools that their ban on pork is fine for them but it is not universal and that it is OK for other kids to eat pork? How about we teach all kids that when they grow up, they might not follow the religion of their parents?

It is changing. Gay people getting accepted by society and being recognized for who they are is changing that.

Part of the West's ongoing rejection of God, with attendant consequences. It's the myth of personal autonomy.

Beginning with the removal of any reference to God in our constitutions and the separation of theology from the legislative process. Oh yes, for the good old days of the Dark Ages!

Perhaps because there are so many parallels. People do not choose their race or their sexual orientation. Society has been slow to accept the aspirations of some due to their race or sexual orientation.

......or religious beliefs.

That's right. You go after the rights of the gays for irrational reasons then who's to stop someone else from going after you for your irrational religious beliefs. Toleration and acceptance should be a goal of public policy. Including toleration of sexual orientation and of religious belief. You might end up in the same boat as the same boat as the gays. But they promise not to make a pass at you.

[Lux]

Why do the schools have to say anything about homosexuality? The vast majority of students will not become gay.

Same reason why they should be taught to be tolerant and respectful of people from all religions, races, economic and social classes, etc.
Chances are everyone will meet a gay or bisexual person at some point in their lives.

[East of Eden]

No. How about that we teach Jewish and Muslim kids in public schools that their ban on pork is fine for them but it is not universal and that it is OK for other kids to eat pork?

So you agree believing homosexual behavior to be immoral is fine for some?

How about we teach all kids that when they grow up, they might not follow the religion of their parents?

.....and that when some grow up, they might not follow the Godlessness of their parents. My wife and both parents are in this category.

Beginning with the removal of any reference to God in our constitutions and the separation of theology from the legislative process. Oh yes, for the good old days of the Dark Ages!

They weren't near as dark as the atheistic Communist failed experiment.

That's right. You go after the rights of the gays

It is your opinion that it is a right for two of the same sex to marry.

for irrational reasons

Another opinion.

then who's to stop someone else from going after you for your irrational religious beliefs. Toleration and acceptance should be a goal of public policy. Including toleration of sexual orientation and of religious belief. You might end up in the same boat as the same boat as the gays. But they promise not to make a pass at you.

But the left isn't tolerant of other's religious beliefs, not even for small kids. This is why alternatives to public schools have grown so. Public schools have become the maddrasses of the secular left.

[JoeyKnothead]

From Post 49:

...Public schools have become the maddrasses of the secular left.

It is this type of language that turns me off to the religious or political right.

I can't recall the name, but I remember recently a conservative who said the vitriolic language used in the health care debate "tied Republican hands", where any compromise was seen as "selling out", or some other such vulgarity. When we demonize one another we are no longer able to reflect with reason on what we have to say. I would much prefer one present their arguments on the merits of the arguments, and quit demonizing the other side of an otherwise simple disagreement.

IMO, this "maddrasses" angle here is an attempt to stir emotions more than present a valid argument. After the events of 9/11, and with the war on Islamic extremism - terrorism - I can't help but conclude such language is used as an insult, a demonizing, a slander against otherwise good folks East of Eden happens to disagree with.

East of Eden is a very, very, very, very capable political debater, who makes some very valid, very accurate points across many topics. This is why I'm put off by his use of this language here. I would implore East of Eden to refrain from such rhetorical trickery, and to debate with the skill I've seen him use over and over again.

You're better than that East of Eden, and what's more, I know you know you are.

(edit for clarity)