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.
