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.

[East of Eden]

Imagine my surprise. I guess you ran out of ways to duck and dodge.

Speaking of dodging, want to answer my question of whether Christians who push the gay agenda are dictating their beliefs to the exclusion of those who believe otherwise?

Yeah, sure. Those claims have been discredited too. I suppose all those other scientists who protested Cameron's distorting and misusing their work were all lying to promote the gay agenda, too.

Yes, much as you do, knowingly or not. Citing gay activist propaganda only shows you to be part of the smear machine. We saw the same thing with those who dared question global warming, at least until Climategate.

I think I've proven my points:

(1) There is no significant opposition to gay marriage that isn't religion-based:

(2) There is no reason why Christians should have the right to dictate the beliefs and practices of Americans to the exclusion of those who believe otherwise; and

(3) Those who oppose gay marriage for religious reasons would not have their rights to practice their own religion infringed to the least degree by its becoming legal.

You're entitled to your opinion. Although I give you an 0 for the above 3, you do get an A for sheer volume.

[micatala]

Single parent households and same-sex households with kids are both bad options.

And yet single parent households are legal.

Yes, with negative consequences. See this UK study: http://www.civitas.org.uk/pubs/experiments.php

Once again, completely dodging the point.


I acknowledge again as I already implicitly if not explicitly did earlier that children of single parents are on average worse off than their counter parts in two parent households in a number of measurable ways.

Still, single parenting is not illegal.




This is the point you keep dodging. Why allow one form of parenting or marriage, despite its disadvantages, and not another which cannot be shown to have any appreciably worse disadvantages? Why use this rationale to discriminate against gays and not use it against other groups or individuals?




Still waiting for data that shows children raised by either one or two gay parents are worse off than other groups.

Still waiting for any groups that have been denied the right to marry based on the poorer statistics they have regarding promiscuity, divorce, or child-rearing.

Well, a gay couple could also serve as parents to an invitro child.

They couldn't provice both a mother and father.

Once again, more dodging.


Gays can serve as parents. We allow single parents of either gender. We allow people to get married without asking how many sexual partners they have had. We allow divorced individuals, even those with a half dozen or more divorces, to get married again.


If we allow the freedom to marry to these individuals, why should any of these issues or behaviors even be raised with respect to gay people?


This is a huge hypocrisy and pretty clearly indicates the real reason people object to gay marriage has nothing to do with promiscuity, or longevity of relationships, or child-rearing. These are all just dodges offered as an attempt to justify the discrimination.

DId I miss it, or do you have any actual evidence that children parented by gay people turn out worse than children of single parents, or poor people, or black people, or scientologists, or illegal immigrants, or native americans, etc. etc.?

Where did the scientologists and native American thing come from? I would be willing to bet children of gay couples do not do as well as families with a mother and father, and I bet most kids given the choice would prefer growing up with a mother and father. Kids should be more important than the gay agenda.

Once again, missing the point which is that we allow individuals to marry the partner of their choice as long as they are consenting adults and none of the issues you raise with respect to gays is ever an issue in these other marriages.

It has even been decide by the SCOTUS that convicted felons have the right to marry.

I agree that most kids would probably be better with two parents than one. I would even let your speculation on kids preferring a mother and a father slide without you providing any evidence to support the assertion.


What I will continue to hammer on though is that you avoid the legal issue.


We allow people the freedom to marry even when we have statistical evidence that the marriage is not likely to last, that the children are more likely to suffer disadvantages, and that one or both partners are divorced or show a record of promiscuity.

Given this undeniable fact, why would we use any of these issues to justify denying the same right to gays?






I will repeat.

Your "pragmatic" reasoning is sounding very hollow. If you are not willing to make the same arguments against other groups based on the same or similar alleged behaviors then it certainly appears your objections are not pragmatic at all but ideological.

Your response was.

No surprise here, we disagree with each other. Others votes are their business.

Again, you can vote any way you want. As cnorman has noted, that is not the issue. What is at issue is the denial of rights to a section of the population.



As a matter of debate, the ideological issue and the fallacious arguments for denying gays the right to marry remain.

We allow people the freedom to marry even when we have statistical evidence that the marriage is not likely to last, that the children are more likely to suffer disadvantages, and that one or both partners are divorced or show a record of promiscuity.

Given this undeniable fact, why would we use any of these issues to justify denying the same right to gays?

[East of Eden]

. What is at issue is the denial of rights to a section of the population.

Show me those rights in the Consitution. It doesn't mention marriage, which leaves it up to the states. A couple states have sanctioned gay marriage, most have not.












[

[Wyvern]

Simply amazing how you can quote one part but ignore just a few lines down that states specifically that the APA dropped him from membership while under charges.

1983 comes after 1982. You ignore the part where he was asked three times to rejoin. They probably were embarrasded at the heavy-handed PC tactics of the 'brownshorts'.

So in 26 years he has been asked to join a professional organization for which he is qualified for three times, you don't think the group responsible for memberships might not have anything in common with the group responsible for discipline? You give people and organizations way too much credit for competence.

So your answer is no, strange how you try to make a negative response sound so positive.

Uh, what kind of success rates to you think other disorders get?

That's not the point, I asked for evidence for your claims and you come up with a quote saying you have no evidence. Then as a follow up you come up with a dig against psychologists. Did you have a bad experience with one?

[McCulloch]

What is at issue is the denial of rights to a section of the population.

Show me those rights in the Consitution. It doesn't mention marriage, which leaves it up to the states. A couple states have sanctioned gay marriage, most have not.

If it can be shown that to deny a marriage license to a couple because they happen to be the same sex violates their human rights, then it becomes a federal issue.

[cnorman18]

Imagine my surprise. I guess you ran out of ways to duck and dodge.

Speaking of dodging, want to answer my question of whether Christians who push the gay agenda are dictating their beliefs to the exclusion of those who believe otherwise?

Dictating what? That people can't be denied basic rights because of their sexual orientation? We've dealt with that. Legalizing gay marriage infringes upon the rights of no one. Prohibiting it does. You won't deal with THAT matter of simple fact, so who's dodging?

Don't pretend that this question hasn't been dealt with. It has, and at length, and you and everyone here absolutely knows that. One way you have of dodging and ducking is this one - continuing to beat dead horses, raising questions that have already been conclusively answered again and again and AGAIN.

Yeah, sure. Those claims have been discredited too. I suppose all those other scientists who protested Cameron's distorting and misusing their work were all lying to promote the gay agenda, too.

Yes, much as you do, knowingly or not.

So a dozen or so reputable scientists lied about Cameron distorting and misusing their work? So the objections I posted to Cameron's methodology are all fabricated and meaningless? Please. You aren't arguing the FACTS here; you're only making unfounded and unsubstantianted assertions.

My own "agenda" has to do with justice and human rights. Nothing more. I don't want to oppress or limit the rights of anyone. You do.

Citing gay activist propaganda only shows you to be part of the smear machine. We saw the same thing with those who dared question global warming, at least until Climategate.

The only smearing going on here comes from you and Cameron peddling your vicious and false homophobic stereotypes. Cameron has tried to link homosexuality with serial murder and child molestation with fake and distorted data, and that SMEAR has been roundly denounced and repudiated by everyone else in the field. His work isn't taken seriously by ANYONE in the scientific community, only by hacks who share his agenda of homophobic hatred. The fact that you're willing to swallow it and dismiss the work of reputable and respected scientists tells us all who is "citing propaganda" and 'promoting an agenda," and who isn't.

I think I've proven my points:

(1) There is no significant opposition to gay marriage that isn't religion-based:

(2) There is no reason why Christians should have the right to dictate the beliefs and practices of Americans to the exclusion of those who believe otherwise; and

(3) Those who oppose gay marriage for religious reasons would not have their rights to practice their own religion infringed to the least degree by its becoming legal.

You're entitled to your opinion. Although I give you an 0 for the above 3...

How does that work? You haven't refuted a single one of them.

...you do get an A for sheer volume.

You get an F for ducking and dodging and "missing the point" over and over again, though "pretending to miss the point" might be more accurate. It's pretty clear that that isn't just MY opinion, too.

Thought you didn't want to continue this. Of course, you're not; you still haven't responded to anyone's points except with the same old specious, factually discredited and hypocritical baloney.

Why don't you just admit that you think being a homosexual is a sin, and that homosexuals ought to be punished for it and suppressed - and that that's the sole and entire basis for your position?

You've proven, over and over, that you have no problem with marriage being legal for people who can't or choose not to have children, or who belong to a demographic which allegedly tends to be more promiscuous than average, or who wish to raise children in a non-conventional family setting - unless those people are gay. THEN it's a problem, and marriage for those people ought to be illegal. That is, obviously and on its face, hypocritical. You're pretending your objection is to all those things, when the ONLY thing you really find objectionable is gay people getting married, period.

Isn't honesty a Christian virtue?

[micatala]

. What is at issue is the denial of rights to a section of the population.

Show me those rights in the Consitution. It doesn't mention marriage, which leaves it up to the states. A couple states have sanctioned gay marriage, most have not.

Well, this response leaves unresolved a whole lot of my previous post, but this is a worthy statement to address.


I certainly agree that marriage is not explicitly addressed in the constitution.


I will ask if East of Eden believes that the only rights we have are those explicitly granted us in the constituion or not?



Secondly, if marriage is not a right, then that applies to everyone, not just gays.


Let's look at what the constitution does say:

Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This pretty clearly says that we have rights or powers not explicitly outlined in the constitution.


For example, I do not believe the constitution explicitly says we are allowed to reside in the state of our choosing. Would East of Eden deny that we have this right? What about the right to watch television or climb trees or to have sex?

Amendment XIV:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If we allow consenting adults A and B to marry but not C and D, we seem to be violating the equal protection clause in Amendment XIV.

Now, a marriage can be considered several things, but one thing it clearly is is a legal contract sworn to by both participants.



Does the constitution explicitly grant citizens the right to form contracts with each other? If not, should we deny citizens the power to do this?





















[[/quote]

[East of Eden]

Why don't you just admit that you think being a homosexual is a sin, and that homosexuals ought to be punished for it and suppressed - and that that's the sole and entire basis for your position?

CNorman, If I can slow down the pissing match and adress this, I think it is the gist of your objection. Yes, I do believe homosexual activity is a sin, as opposed to same-sex feelings. No, I don't think homosexuals should be punished and suppressed, that's Islam. God will deal with all our sins at the last day, IMHO. I have never said homosexual activity should be criminalized. With the gay group from the NYT article I posted, I think they should get civil unions.

You've proven, over and over, that you have no problem with marriage being legal for people who can't or choose not to have children,

But can provide a mother and father.

[Clownboat]

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.

This does not apply to my non religous friend that is not in favor of gay marriage. Could it be because he was molested while sleeping, by a buddy of his in high school that was gay and he didn't even know it at the time?

Could that possibly affect his stance, or his feelings towards gays?

I'm not saying you and Cephus are wrong about your stance in general, just that you are wrong about it only coming from religious people. That belief lumps my buddy in with all the religious people that you do not feel should have a say, thus making his point (or vote, if he voted against it) not worthy to be counted either, if your saying that the idea comes from nowhere but religion that is, because his certainly does not.

We're talking about significant percentages here, not isolated individual cases. I think I've made it clear that in my opinion and I think in fact, 99+% of opposition to gay marriage is religious, overt or covert. What percentage of US voters would be represented by your friend? 1/100 of 1 percent? I doubt it's that high.

Further; AGAIN, I never said that anyone ought not have a "say." I've said that no one gets to force their religious beliefs upon others, and that is a matter of American law, not opinion.

I brought up one example of a non religious adversion to homosexual marriage. (Actually an adversion to all things homosexual in this case). Cnorm implied that, that was the only other scenario besides religion, when in fact that is just one other example. I trust the readers can see through that. Imagine stopping in a bar in a rual town in say South Dakota. Sure there will be religious folks that appose gay marriage, but there will be plenty of non religious folk that will not like the idea also. I am not advocating that there decision is right, but it is there decision to make.

I do admit, that even though I think the 99% is way off, and that there are plenty of other reasons for some people to appose gay marriage, overall, I still think that all of them added up would still be a pretty small minority when compared to religious reasons as a whole.

[cnorman18]

Why don't you just admit that you think being a homosexual is a sin, and that homosexuals ought to be punished for it and suppressed - and that that's the sole and entire basis for your position?

CNorman, If I can slow down the pissing match and adress this...

What "pissing match"? I'm posting arguments and answering yours. What you're doing, I'm not sure of, but it isn't that.

I think it is the gist of your objection. Yes, I do believe homosexual activity is a sin, as opposed to same-sex feelings.

Reeeeally?

You don't think a man desiring another man is sinful?

You don't think that ought to be considered wrong, and men who feel that way ought not be prohibited from, say, teaching children, as well as getting married? Tell the truth.

No, I don't think homosexuals should be punished and suppressed, that's Islam.

Of course you do. You think that gays should be punished for being gay and suppressed by denying them the right to marry. You don't think anyone BUT gays should be prohibited from being married, even if their marriages are subject to the same problems you claim that gay marriages are.

What other explanation is there? You haven't given one that stands up to scrutiny for even a moment.

God will deal with all our sins at the last day, IMHO. I have never said homosexual activity should be criminalized. With the gay group from the NYT article I posted, I think they should get civil unions.

Sorry, that's not good enough. Marriage has been established in American law as a basic legal right, which even convicted felons have. You have presented NO evidence and NO reasoning which justifies prohibiting marriage for gays, since the reasons you give don't justify prohibiting marriage for anyone ELSE.

You've proven, over and over, that you have no problem with marriage being legal for people who can't or choose not to have children,

But can provide a mother and father.

More blatant and obvious hypocrisy! Do you think repeating your phony objections makes them credible?

You don't think that same-sex caregivers, e.g. brothers or sisters who live together and who are raising children from one of their marriages, should be prevented from doing so by the force of law, now, DO YOU? Tell the truth.

I will happily withdraw all my objections and concede that you are NOT a hypocrite - IF you will go on the record right now and advocate that ALL such arrangements should be prohibited by law, and that children should only be raised by two legally required caregivers of opposite genders - no single parents allowed, no one allowed to have children in their care but a man and a woman ONLY. All other childrearing arrangements would become illegal. Is that what you think?

If not, you stand convicted of hypocrisy and disingenuous argument.

How about it?