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.

[cnorman18]

And I keep asking "Then who else?" and you have no answer, again.

Secular people with common sense?

But your version of "common sense" holds that homosexuality is, in itself, wrong, perverted and evil, does it not? That conviction can come only from religion.

My mother thought it was "common sense" that blacks should be subservient to whites. That's not an argument; it's merely admitting that one swallows the current common prejudice.

Which are 'fake' reasons

Because you disagree with them doesn't make them fake.

No, they're fake because you only apply them to gays. When the same "reasons" apply to straight people - inability to have children, e.g. - you don't think they matter. Fake. Phony.

Funny how you're perfectly willing to talk about all those reasons till they're proven to be phony.

I must have missed that part.

You didn't miss it. You just ignored the arguments. See above.

One more time: who, other than fundamentalists, wants to keep gay marriage illegal?

So 52% of Californians are fundamentalists? What's the percentage in San Francisco?

Non sequitur. Did Prop 8 pass in San Francisco?

The majority of Californians are professed Christians. Those who voted for Prop 8 are fundamentalists on the subject of homosexuality. Opposition to gay marriage comes from no other motivation, in the end.

That's "common sense."

Can you cite even ONE totally secular organization or group, with no religious connection or affiliation at all, that is working to keep gay marriage illegal? If they have no organization or even a name, there must not be many of them. Who are they?

Political figures Republican presidential nominee and U.S. Senator John McCain released a statement of support for the proposed constitutional amendment.[39] Former Speaker of the House Newt Gingrich released a video in support. Both characterized the court ruling requiring recognition of same sex marriage as being against the will of the people.[40] Other notable supporters include Republican State Senator Tom McClintock and 20 other Republican State Senators and Assemblymembers.[41]

Who are all professing Christians. If not, please post the evidence.

Others
The Grossmont Union High School District in San Diego County, California, publicly voted on a resolution endorsing Proposition 8. The Governing Board voted 4"0 to endorse the amendment of the California State Constitution.[63]

Yes, and the leaders of that group, Priscilla Schreiber and Larry Urdahl, are celebrated as "Christian heroes" here, long before Prop 8. Ms. Schreiber in particular is lionized as a hero on fundamentalist websites, her fame beginning when she tried to have a board member removed who actually had the temerity to support a measure extending legal protection from discrimination and violence to gays. Her agenda is clear and proves my point; opposition to gay marriage is invariably based on religious grounds, directly or indirectly. In this case, it's direct.

The Asian Heritage Coalition held a rally in support of Proposition 8 in downtown San Diego on October 19, 2008.[64]

Maybe you should read the footnotes:

Here are the first two sentences from this, the source for your claim.

Asian group rallies for traditional marriage

"Saying most Asians don't support same-sex marriage, the Asian Heritage Coalition held a rally for Proposition 8 in downtown San Diego Sunday morning.

About 120 people gathered to hear speeches from religious leaders, including Catholic Bishop Salvatore Cordileone of San Diego, in front of the County Administration Center overlooking San Diego Bay.

Hello? This isn't secular opposition.

I reject your position that only gay activist groups, and not faith-based groups, have a say in public policy.

And once again you deliberately misrepresent what I have explicitly said.

No one has ever said that faith-based groups don't or shouldn't have a say in public policy. What I, and others, HAVE said, is that public policy may not be directly dictated by any religious group or set of groups under the American legal system; no purely religious doctrine may be enforced by the civil or criminal law if it violates the Constitution.

The fact that Christians may not dictate public policy based on their religious beliefs does not constitute bias or unfairness toward Christians. Muslims may not impose their doctrines on all Americans either, and I doubt very much that you think that unfair.

As you say, and as I have agreed, people may vote for whatever they like for whatever reasons they like. No one has ever said otherwise. But if there are no nonreligious reasons for a law, the law is not Constitutional and therefore invalid, even if 100% of the people vote for it.

You keep pretending I'm trying to muzzle Christians and stifle their freedom of speech. That is an implicit lie. I'm trying to say that freedom of speech on the part of Christians doesn't mean that that speech has to be obeyed by everyone else.

Do you also reject the involvement of the Christian left who support gay marriage?

Repeating a misstatement of fact doesn't make it true; and an objection based on an argument I haven't made (and that you know I haven't made) is meaningless.

Why can't you actually respond to my arguments instead of misrepresenting them and arguing against strawmen?

All opposition to gay marriage is based on the idea that homosexuality is bad, objectionable, and/or perverted. That idea comes from nowhere but religion.

One more time (and I point out that your failure to answer this is very, VERY suggestive): Can you cite any opposition to gay marriage at all, from any source, that ISN'T based on the idea that being gay is "bad"? Sorry, but assuming that that idea is self-evidently true doesn't count.

[cnorman18]

One more time: who, other than fundamentalists, wants to keep gay marriage illegal? Can you cite even ONE totally secular organization or group, with no religious connection or affiliation at all, that is working to keep gay marriage illegal? If they have no organization or even a name, there must not be many of them. Who are they?

Your theory that only secularism can shape public policy...

That's not quite right. My "theory," as you call it, which has been raised to the level of binding legal precedent by the Supreme Court, is that no law which is justified by religious concerns only is legal or Constitutional in the United States.

...would be appropriate in France, but not in the US. The doctrine of laicite is inscribed in Aricle I of the French Constitution and proclaims France a secular republic. Laicite is roughly translated as national secularism, and has acquired a militant meaning, by which government must confine religion to the private sphere.

Who cares? We're not talking about France.

In spite of your claims, no one here is saying that Christians have no right to join in determining public policy. Christians have no right to DICTATE public policy and force their religious beliefs and practices upon everyone, and that's a matter of simple fairness as well as American constitutional law.

You refuse to address that proposition, which is at the heart of this debate.

Simple question, which you may answer directly, or dodge again:

Why should Christians have the right to force everyone to live according to Christian standards and beliefs?

Our Founders wanted to encourage religion, without favoring a particular denomination.

Given that they also prohibited infringement of the practice of religion on the part of the Government, I think that that is true; but outlawing gay marriage DOES favor a particular group of religions, while ignoring the beliefs and values (tolerance, equality, etc.) of other religions and of those who profess no religion at all. It is therefore unconstitutional. That, in American law, is the end of the matter.

Again; if you can provide an argument against homosexuality that doesn't assume that it's "bad" in some way, or justify forcing all Americans to live as fundamentalist Christians, please do so. Otherwise, you seem to have nothing to say but to repeat arguments that others have already refuted, and conclusively, as if they were new.

[Cephus]

You might have a point if the gay marriage referendum weren't also defeated pre-Obama.

How exactly was it defeated before it was even voted upon? The wild card was always how many first-time voters would come out of the woodwork on election day. Based on polling prior to the election of existing voters, Prop 8 looked like it would go down in flames.

[East of Eden]

You might have a point if the gay marriage referendum weren't also defeated pre-Obama.

How exactly was it defeated before it was even voted upon? The wild card was always how many first-time voters would come out of the woodwork on election day. Based on polling prior to the election of existing voters, Prop 8 looked like it would go down in flames.

Other states.

[East of Eden]

But your version of "common sense" holds that homosexuality is, in itself, wrong, perverted and evil, does it not? That conviction can come only from religion.

Prove that. You don't have to be a genius to note gays can't procreate, and that in gay males it is a deadly lifestyle.

My mother thought it was "common sense" that blacks should be subservient to whites. That's not an argument; it's merely admitting that one swallows the current common prejudice.

Which could apply to your position.

No, they're fake because you only apply them to gays. When the same "reasons" apply to straight people - inability to have children, e.g. - you don't think they matter. Fake. Phony.

The only thing fake and phony is your comprehension. I said before gays can't procreate and even if they adopt, the kids are shortchanged being without both a mother and father.

You didn't miss it. You just ignored the arguments. See above.

You mean like you ignored my arguments on gays being inable to procreate, etc.?

One more time: who, other than fundamentalists, wants to keep gay marriage illegal?

Where is your data that 52% of CA voters are Christian fundamentalists? That is idiotic on the face of it. If it were true you should be able to add up fundalmentalist church membership rolls in the neighborhood of 20,000,000 people.

Non sequitur. Did Prop 8 pass in San Francisco?

You can't come up with San Francisco fundamentalist churches numbers that would equate with whatever number voted for Prop.8 in SF. According to this poll, the percentage of fundamentalists in the West is only 23%.

"In the West, the number of religious liberals grew from 20 percent in 1972 to 33 percent in 2002, while fundamentalists remained relatively unchanged, from 22 percent in 1972 to 23 percent in 2002."

The majority of Californians are professed Christians. Those who voted for Prop 8 are fundamentalists on the subject of homosexuality. Opposition to gay marriage comes from no other motivation, in the end.

A cultural Christian does not = Fundamentalist.

Who are all professing Christians. If not, please post the evidence.

Nice try. You asked originally for non-Christian organizations, now you assume the individuals to be Christians. It's like trying to hit a moving target.

Asian group rallies for traditional marriage

"Saying most Asians don't support same-sex marriage, the Asian Heritage Coalition held a rally for Proposition 8 in downtown San Diego Sunday morning.

About 120 people gathered to hear speeches from religious leaders, including Catholic Bishop Salvatore Cordileone of San Diego, in front of the County Administration Center overlooking San Diego Bay.

So what? There were liberal Christians opposing Prop. 8 because of their religious convictions. You keep dodging the question of whether that is bad too. You've got a double standard going, you haven't once objected to liberal Christians trying to pass gay marriage because of their Christian beliefs.

And once again you deliberately misrepresent what I have explicitly said.

Curb the rhetoric. We may misunderstand what the other says, drop the 'deliberate'.

No one has ever said that faith-based groups don't or shouldn't have a say in public policy. What I, and others, HAVE said, is that public policy may not be directly dictated by any religious group or set of groups under the American legal system; no purely religious doctrine may be enforced by the civil or criminal law if it violates the Constitution.

The opposition to gay marriage isn't 'purely' religious.

The fact that Christians may not dictate public policy based on their religious beliefs does not constitute bias or unfairness toward Christians. Muslims may not impose their doctrines on all Americans either, and I doubt very much that you think that unfair.

I couldn't care less what motivates Muslims or anyone else when they vote.

As you say, and as I have agreed, people may vote for whatever they like for whatever reasons they like. No one has ever said otherwise. But if there are no nonreligious reasons for a law, the law is not Constitutional and therefore invalid, even if 100% of the people vote for it.

And there are non-religious reasons to support Prop. 8.

You keep pretending I'm trying to muzzle Christians and stifle their freedom of speech. That is an implicit lie. I'm trying to say that freedom of speech on the part of Christians doesn't mean that that speech has to be obeyed by everyone else.

There are Christians on both sides of this issue.

Do you also reject the involvement of the Christian left who support gay marriage?



Repeating a misstatement of fact doesn't make it true; and an objection based on an argument I haven't made (and that you know I haven't made) is meaningless.

Why can't you actually respond to my arguments instead of misrepresenting them and arguing against strawmen?

Why can't you quit dodging and answer my question?

All opposition to gay marriage is based on the idea that homosexuality is bad, objectionable, and/or perverted. That idea comes from nowhere but religion.

One more time (and I point out that your failure to answer this is very, VERY suggestive): Can you cite any opposition to gay marriage at all, from any source, that ISN'T based on the idea that being gay is "bad"? Sorry, but assuming that that idea is self-evidently true doesn't count.

I've heard of gays who do not support gay marriage, but instead support civil unions.

[East of Eden]

You didn't specify fundamentalists

Cnorman18 did.

[East of Eden]

That's not quite right. My "theory," as you call it, which has been raised to the level of binding legal precedent by the Supreme Court, is that no law which is justified by religious concerns only is legal or Constitutional in the United States.

And it isn't only, any more than laws against murder are. I would say that is an idiotic court finding, as nobody is establishing a church. Courts are not infallible.

In spite of your claims, no one here is saying that Christians have no right to join in determining public policy. Christians have no right to DICTATE public policy and force their religious beliefs and practices upon everyone, and that's a matter of simple fairness as well as American constitutional law.

Only militant secularistis do?

Simple question, which you may answer directly, or dodge again:

Why should Christians have the right to force everyone to live according to Christian standards and beliefs?

If we're talking about referendums, if their side wins, that's tough. The same as if the 'secular' position wins.

Given that they also prohibited infringement of the practice of religion on the part of the Government, I think that that is true; but outlawing gay marriage DOES favor a particular group of religions, while ignoring the beliefs and values (tolerance, equality, etc.) of other religions and of those who profess no religion at all. It is therefore unconstitutional. That, in American law, is the end of the matter.

Again; if you can provide an argument against homosexuality that doesn't assume that it's "bad" in some way, or justify forcing all Americans to live as fundamentalist Christians, please do so. Otherwise, you seem to have nothing to say but to repeat arguments that others have already refuted, and conclusively, as if they were new.

Would opposition to three people marrying also be 'purely' religious?

[McCulloch]

Would opposition to three people marrying also be 'purely' religious?

No, it would be pragmatic. Would it be the union of three persons or three unions of two people? How would divorce work? Who is the next of kin? How would survivor benefits work? Our legal systems are often strained to the limit with the difficulties and dilemmas of two person marriages.

[cnorman18]

But your version of "common sense" holds that homosexuality is, in itself, wrong, perverted and evil, does it not? That conviction can come only from religion.

Prove that. You don't have to be a genius to note gays can't procreate, and that in gay males it is a deadly lifestyle.

There are those phony reasons again. Lots of people can't procreate, and you aren't at all interested in banning marriage for the infertile or those over 50; and it isn't homosexuality that constitutes a "deadly lifestyle," but promiscuity. That's a much bigger problem among heterosexuals, from their sheer numbers alone. Since monogamous homosexual couples, of which there are many, lead a lifestyle no "deadlier" than monogamous heterosexual couples, legalizing gay marriage would logically make promiscuity LESS common among gays, not more so.

The only thing fake and phony is your comprehension. I said before gays can't procreate and even if they adopt, the kids are shortchanged being without both a mother and father.

Then logically you should want to prohibit single parenthood, and children living with one parent and a same-sex sibling of that parent, and children being raised by single grandparents, and so on. The fact that your objection doesn't apply to those groups proves that your objection is actually to homosexuality, not to other-than-conventional parenthood. If the same-sex couple isn't gay, or if the single parent isn't gay, it's not a problem, or at least not a problem serious enough to ban marriage for those people. QED.

One more time: who, other than fundamentalists, wants to keep gay marriage illegal?

Where is your data that 52% of CA voters are Christian fundamentalists? That is idiotic on the face of it. If it were true you should be able to add up fundalmentalist church membership rolls in the neighborhood of 20,000,000 people.

Have you added up the church membership rolls in California?

Are all fundamentalists affiliated with a church organization?

Is it possible that some members of non-fundamentalist churches, like the Methodists and the Episcopalians (don't forget that a large proportion of Episcopalians are leaving their church over that very issue), might be fundamentalists on homosexuality?

You have failed so far, in spite of your repeated false claims, to provide a single reason to oppose gay marriage that (1) honestly applies to both gays and straights equally, and (2) is not based on the idea that homosexuality is a sin. Until you can give a reason that is both, it remains clear that the only significant opposition to gay marriage is based on religion.

The majority of Californians are professed Christians. Those who voted for Prop 8 are fundamentalists on the subject of homosexuality. Opposition to gay marriage comes from no other motivation, in the end.

A cultural Christian does not = Fundamentalist.

Doesn't a "cultural Christian's" opposition to gay marriage come from his religious beliefs? I'll grant you that attributing opposition to gay marriage to "fundamentalists" only was inaccurate, if I ever in fact said that; but opposition to gay marriage IS 99+% relgious.

Who are all professing Christians. If not, please post the evidence.

Nice try. You asked originally for non-Christian organizations, now you assume the individuals to be Christians. It's like trying to hit a moving target.

Nice try, yourself. You claimed that these were examples of non-religious opposition to gay marriage. They aren't.

Asian group rallies for traditional marriage

"Saying most Asians don't support same-sex marriage, the Asian Heritage Coalition held a rally for Proposition 8 in downtown San Diego Sunday morning.

About 120 people gathered to hear speeches from religious leaders, including Catholic Bishop Salvatore Cordileone of San Diego, in front of the County Administration Center overlooking San Diego Bay.

So what?

So you claimed that these were examples of non-religious opposition to gay marriage. They aren't.

There were liberal Christians opposing Prop. 8 because of their religious convictions.

And that is their right, just as it is the right of fundamentalists to oppose it.

You're not getting this; Prop 8 isn't wrong because fundamentalists support it; it's wrong because it's unjust and contrary to American law.

You keep dodging the question of whether that is bad too. You've got a double standard going, you haven't once objected to liberal Christians trying to pass gay marriage because of their Christian beliefs.

And you KEEP ON trying to misrepresent what I'm saying; at this point, I would have to say that that is dishonest. I've never said that Christian involvement in public policy is bad, no matter how many times you try to put those words in my mouth.

See? You can't mount an actual argument; all you can do is argue against strawmen and keep presenting the same well-refuted arguments about procreation and disease and so on. We've been over all this more than once already, and you keep pretending we haven't.

And once again you deliberately misrepresent what I have explicitly said.

Curb the rhetoric. We may misunderstand what the other says, drop the 'deliberate'.

If you'll stop trying to misrepresent my arguments after I've carefully corrected you multiple times, I'll stop saying "deliberate." Like I said; I've made myself too clear here for you to have misunderstood me. There is absolutely nothing wrong with Christians, fundamentalist Christians, or anyone else opposing gay marriage and working to ban it for whatever reasons they like, including reasons based on religion. Okay?

What I keep trying to tell you is that imposing a religious doctrine on all Americans is unconstitutional, and any law that enshrines the idea that homosexuality is in any way "bad," "evil," or otherwise subject to special sanctions under the law is absolutely a religious doctrine. NONE of the "nonreligious" reasons you keep giving as if they were new are to be applied to non-gay people, and that absolutely proves that they are rationalizations of sanctions against being a homosexual, and not being unable to have children or having to raise a child without an opposite-sex mate.

No one has ever said that faith-based groups don't or shouldn't have a say in public policy. What I, and others, HAVE said, is that public policy may not be directly dictated by any religious group or set of groups under the American legal system; no purely religious doctrine may be enforced by the civil or criminal law if it violates the Constitution.

The opposition to gay marriage isn't 'purely' religious.

So you keep saying, but you've yet to give a single example of a reason to ban gay marriage that you'll apply equally to straights, or any reason that is NOT based on the idea that it's a sin to be a homosexual.

In other words, yes, it is purely religious, as in 99+%. You have yet to show that it's not.

The fact that Christians may not dictate public policy based on their religious beliefs does not constitute bias or unfairness toward Christians. Muslims may not impose their doctrines on all Americans either, and I doubt very much that you think that unfair.

I couldn't care less what motivates Muslims or anyone else when they vote.

Are you DELIBERATELY missing the point?

We're not talking about motivations. We're talking about what can become law.

You apparently think it's unfair that Christian doctrines can't be forced on all Americans under our legal system; but I don't think you're regard it as unfair that Muslims can't force THEIR beliefs on all Americans, either.

Okay, now pretend you didn't understand THAT.

As you say, and as I have agreed, people may vote for whatever they like for whatever reasons they like. No one has ever said otherwise. But if there are no nonreligious reasons for a law, the law is not Constitutional and therefore invalid, even if 100% of the people vote for it.

And there are non-religious reasons to support Prop. 8.

Again: So you say. What are they? You haven't given one yet that you'll apply to straights as well, which means your "reasons" aren't about what you pretend they are, but about being gay.

I don't think I've ever repeated myself this many times on this many topics in any debate ever, without those repetitions even being acknowledged, as opposed to ignored, misrepresented, or otherwise dodged.

You keep pretending I'm trying to muzzle Christians and stifle their freedom of speech. That is an implicit lie. I'm trying to say that freedom of speech on the part of Christians doesn't mean that that speech has to be obeyed by everyone else.

There are Christians on both sides of this issue.

?

That's a non sequitur if there ever was one.

What on Earth does that have to do what what I just said?

Do you also reject the involvement of the Christian left who support gay marriage?

Repeating a misstatement of fact doesn't make it true; and an objection based on an argument I haven't made (and that you know I haven't made) is meaningless.

Why can't you actually respond to my arguments instead of misrepresenting them and arguing against strawmen?

Why can't you quit dodging and answer my question?

Because it's a question based on a lie. I never said that involvement of fundamentalists in the political process was wrong in the first place, so the question contains an implicit falsehood.

Okay? Now when did you stop beating YOUR wife?

All opposition to gay marriage is based on the idea that homosexuality is bad, objectionable, and/or perverted. That idea comes from nowhere but religion.

One more time (and I point out that your failure to answer this is very, VERY suggestive): Can you cite any opposition to gay marriage at all, from any source, that ISN'T based on the idea that being gay is "bad"? Sorry, but assuming that that idea is self-evidently true doesn't count.

I've heard of gays who do not support gay marriage, but instead support civil unions.

References? The reasoning behind this? Quotes? Sources?

Anything?

Further: So what? Throughout this debate we've been talking about significant reasons to oppose gay marriage. The number of GAYS who oppose gay marriage is about as significant as the number of blacks in the Ku Klux Klan.

---

I think we're about done here. If you misrepresent my position again, it will be clearly established that you are doing so deliberately, and I will not bother to respond. If you try to post the same specious "nonreligious reasons" to oppose gay marriage which you will not apply equally to straight people, I will not bother to respond to those either. Endlessly repeating a phony argument doesn't make it real.

Being gay is no more "bad" than being tall or left-handed. Any law which discriminates against people for being gay, as every single one of your phony "non-religious reasons" inarguably does (since they aren't applied to straights), is discriminatory and unjust on its face, regardless of religious concerns. The fact that discrimination against gays is based on religious dogma and nothing else merely puts a name to the reason it's unconstitutional.

Yet one more time: Do you have an argument against gay marriage that doesn't begin with the premise that being gay is "bad," which is a sectarian religious doctrine?

[Cephus]

You might have a point if the gay marriage referendum weren't also defeated pre-Obama.

How exactly was it defeated before it was even voted upon? The wild card was always how many first-time voters would come out of the woodwork on election day. Based on polling prior to the election of existing voters, Prop 8 looked like it would go down in flames.

Other states.

So what? It's also been supported in other states. California was not the first and certainly won't be the last state to put gay marriage on the ballot, with a variety of results.