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.

[Clownboat]

Doesn't a gay man already have the exact same right as a straight man, in that he can marry a women just like a straight man can. Children brought up in a household like this should have a typical mommy daddy feel to their upbringing, many and possibly most people would consider this a normal upbringing environment.

Take that back not too long ago. You had to marry within your religion, you had to marry within your race, you had no choices. Should we go back to those standards too? Gender discrimination has no more place in marriage than religious or racial discrimination does.

A gay person does have the same rights as a straight person when it comes to marriage. To claim they don't have the same right to marry a person they love, like a straight person does, is a different argument that does have merit.

What group of people are you talking about when you say, "you" had to marry within your religion? Are you suggesting that because that was common within a certain group of people for a time, we should institute that in the modern age and impose it on everyone? You would need to supply a very compelling argument to support such an opinion. Since I don't believe what you present is close to a reality, I find it a moot point to suggest such a regression.

Back to the OP. What is your take on bringing a child up in a mommy/daddy environment compared to a daddy/daddy or mommy/mommy one? Would you think being raised in a mommy/daddy environment would be preferred over same sex if there was a choice?

Disclaimer:
Again, I am playing the devil's advocate here. I gave up my gay hating fundamentalist views over 14 years ago. I am curious about peoples views on raising a child in one environment compared to another though.

[aarons914]

Only to be the devil's advocate here...

Doesn't a gay man already have the exact same right as a straight man, in that he can marry a women just like a straight man can. Children brought up in a household like this should have a typical mommy daddy feel to their upbringing, many and possibly most people would consider this a normal upbringing environment.

To give a gay man rights to marry someone of the same sex, would be giving them a right that straight men do not have, if we take this literally. This could also cause more children to be brought up in daddy daddy/mommy mommy households. Many would consider this non typical.

I do not have enough info to personally say there is anything wrong with a daddy daddy or mommy mommy home. It could in fact be a healthier environment.

Is it rational to consider the fear some would have about passing a law that may increase the amount of children raised in a non typical household?

And 60 years ago we all had the same rights to marry as well, as long as it was the same race as yours.

[Cephus]

Only to be the devil's advocate here...

Doesn't a gay man already have the exact same right as a straight man, in that he can marry a women just like a straight man can. Children brought up in a household like this should have a typical mommy daddy feel to their upbringing, many and possibly most people would consider this a normal upbringing environment.

To give a gay man rights to marry someone of the same sex, would be giving them a right that straight men do not have, if we take this literally. This could also cause more children to be brought up in daddy daddy/mommy mommy households. Many would consider this non typical.

I do not have enough info to personally say there is anything wrong with a daddy daddy or mommy mommy home. It could in fact be a healthier environment.

Is it rational to consider the fear some would have about passing a law that may increase the amount of children raised in a non typical household?

And 60 years ago we all had the same rights to marry as well, as long as it was the same race as yours.

Or the same religion as yours. If a black man married a white woman, he was likely to get lynched. If a Catholic married a Jew or a Muslim, the same thing was likely to happen. Heck, look at parts of the Middle East where they'll take you out and kill you if you marry outside of your religion.

It's absurd in the extreme to deny people the ability to marry who they want, regardless of race, creed, religion, gender, etc. So long as both are of legal age and consent, it's none of the government's business.

[East of Eden]

I'd like to see it win and if the Supreme Court Justices did what they were actually appointed to do, rule strictly on the Constitutional merit of a case, then it would win hands down. Unfortunately, the Supreme Court has this nasty habit of putting personal biases into their decisions and therefore, I'm rather skeptical. There is nothing whatsoever in the Constitution that would limit a homosexual couple's legal ability to marry, in fact the Constitution guarantees equality, something that gays are not receiving. Therefore, by any reasonable Constitutional interpretation, gay marriage ought to be legal nationwide.

Of course, reasonableness tends to break down quite often where strong emotions and religion come into play.

You say you dislike religion coming into play, are you against the religious left supporting gay marriage?

Does the Constitution allow 3 people to marry?

[cnorman18]

You say you dislike religion coming into play, are you against the religious left supporting gay marriage?

There is a significant difference. It is not only the "religious left" that supports gay marriage, but most secular, nonreligious people - who support it for reasons unrelated to any religion at all. The issue is JUSTICE, not religious dogma, and I would say that that applies to the "religious left," too.

On the other hand, who is there other than the "religious right" that OPPOSES gay marriage? Who opposes it for reasons OTHER than religious dogma, which they wish to force upon everyone, including those who do not share their religion?

Does the Constitution allow 3 people to marry?

No. It doesn't "allow" 2 people to marry, either. The Constitution has nothing to say about marriage at all.

[East of Eden]

There is a significant difference. It is not only the "religious left" that supports gay marriage, but most secular, nonreligious people - who support it for reasons unrelated to any religion at all. The issue is JUSTICE, not religious dogma, and I would say that that applies to the "religious left," too.

On the other hand, who is there other than the "religious right" that OPPOSES gay marriage? Who opposes it for reasons OTHER than religious dogma, which they wish to force upon everyone, including those who do not share their religion?

52% of Californians voted against gay marriage. There aren't enough of the religious right there to make up that total.

I've said it before here, what motivates someone to vote in a particular way is their business, not anyone else's.

No. It doesn't "allow" 2 people to marry, either. The Constitution has nothing to say about marriage at all.

OK, so you're not using the constitutional issue as justification?

[cnorman18]

There is a significant difference. It is not only the "religious left" that supports gay marriage, but most secular, nonreligious people - who support it for reasons unrelated to any religion at all. The issue is JUSTICE, not religious dogma, and I would say that that applies to the "religious left," too.

On the other hand, who is there other than the "religious right" that OPPOSES gay marriage? Who opposes it for reasons OTHER than religious dogma, which they wish to force upon everyone, including those who do not share their religion?

52% of Californians voted against gay marriage. There aren't enough of the religious right there to make up that total.

Evidently there are; perhaps they came out to vote in larger numbers than those who don't oppose gay marriage. Or can you document another bloc of voters, large enough to be significant, who oppose gay marriage on nonreligious grounds?

I've said it before here, what motivates someone to vote in a particular way is their business, not anyone else's.

True on a personal level, but we are discussing the impact of religious beliefs on civil policy here, and that makes motivation a legitimate topic for discussion. You don't get to speak against gay marriage on religiious grounds and when challenged, say it's no one's business what your reasons are.

A particular religious dogma may not directly dictate American civil law. If the nonestablishment clause in the First Amendment means anything at all, it means that.

No. It doesn't "allow" 2 people to marry, either. The Constitution has nothing to say about marriage at all.

OK, so you're not using the constitutional issue as justification?

Nice try, but like I said, the issue isn't either the correctness of particular religious beliefs or the nature of marriage; neither of those is determined by, or even mentioned in, the Constitution.

The issue is JUSTICE, which is.

[McCulloch]

52% of Californians voted against gay marriage.

If 52% of Californians voted to suppress free speech or to prevent Chinese Americans from voting, would it be in any way relevant? If it is a matter of human rights protected by the constitution, then the 2% margin has no bearing at all.

The Constitution has nothing to say about marriage at all.

OK, so you're not using the constitutional issue as justification?

In Canada, the constitutional issue was about whether a government office had the right to refuse to provide a service (in this case a marriage license) merely because the applicants were a same-sex couple rather than an opposite sex couple. The Supreme Court ruled that the law on marriage violated the equality provisions in the Canadian Charter of Rights and Freedoms in being restricted to heterosexual couples.

In the US, I believe that the issue will revolve around the justification for the prohibition of same-sex marriage. If the only reasons for preventing the recognition of same-sex unions as marriages can be found in the precepts of religion, then I suspect that the US Supreme Court will rule in favor of its recognition. On the other hand, if the opponents of same-sex marriage find some legitimate sounding secular reasons for their opposition, the courts may rule the other way.

[Cephus]

You say you dislike religion coming into play, are you against the religious left supporting gay marriage?

Does the Constitution allow 3 people to marry?

It's entirely irrelevant whether the "religious left" supports anything, only what specific people support. And the Constitution says nothing whatsoever about marriage, period. There are some significant problems with polygamous marriage that would need to be worked out, there is no case law presently on the books to handle them, but if they could be, I have no problem with as many people getting married as want to.

[East of Eden]

Evidently there are; perhaps they came out to vote in larger numbers than those who don't oppose gay marriage. Or can you document another bloc of voters, large enough to be significant, who oppose gay marriage on nonreligious grounds?

Sorry, I'm not into identity group politics. I assume many CA non-religious voters voted on common-sense grounds. Your idea of common-sense may be different.

Once again, it is irrelevant whether the voting motives were religious or non-religious. To tell a religious person they can't excercise their vote in accordance with their conscience is borderline infringement of their constitutional right of free excercise of religion. There is no separation of church and mind for many of us.

True on a personal level, but we are discussing the impact of religious beliefs on civil policy here,

Like what ML King did.

and that makes motivation a legitimate topic for discussion. You don't get to speak against gay marriage on religiious grounds and when challenged, say it's no one's business what your reasons are.

Yes I do.

A particular religious dogma may not directly dictate American civil law. If the nonestablishment clause in the First Amendment means anything at all, it means that.

If you have dozens of different denominations or religions voting against gay marriage, what church is being establlished? If the religious left votes for gay marriage because of their religious convictions, is that also an 'establishment' to you?

The issue is JUSTICE, which is.

That is a matter of opinion, as the Constitution is silent on it. The government has an interest in heterosexual marriage for the procreation of society and to have stable families, it has none such interest in the case of gay 'marriage'.