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]

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

That's because the Prop 8 people were allowed to outright lie in their radio and television ads, there is no requirement whatsoever that political ads actually tell the truth. Therefore, they started advertising that allowing gay marriage was going to lead to homosexuality being taught in kindergartens and other utter nonsense. The second issue is the fact that the Obama presidential run brought a huge percentage of minority voters out of the woodwork, people who had never voted before and those black and hispanic voters are overwhelmingly religious. It swung the vote. Finally, religious organizations, especially the Mormons, pumped a ton of money into the campaign, illegally I might add, that helped get it to squeak by.

There were a lot of factors that contributed to the Prop 8 disaster.

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

How can anyone use "the constitutional issue" as justification when the Constitution doesn't mention marriage at all? You make no sense.

[East of Eden]

That's because the Prop 8 people were allowed to outright lie in their radio and television ads, there is no requirement whatsoever that political ads actually tell the truth. Therefore, they started advertising that allowing gay marriage was going to lead to homosexuality being taught in kindergartens and other utter nonsense.

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

The second issue is the fact that the Obama presidential run brought a huge percentage of minority voters out of the woodwork, people who had never voted before and those black and hispanic voters are overwhelmingly religious. It swung the vote. Finally, religious organizations, especially the Mormons, pumped a ton of money into the campaign, illegally I might add, that helped get it to squeak by.

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

There were a lot of factors that contributed to the Prop 8 disaster.

What disaster? I prefer to call it the will of the people.

How can anyone use "the constitutional issue" as justification when the Constitution doesn't mention marriage at all? You make no sense.

Huh? I never used it as justification, I was trying to claify CNorman's position.

[McCulloch]

That's [homosexuality being taught in kindergartens] happening in some public schools with very young children.

Please cite some sources for this allegation.

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

What is the law about non-profit religious organizations contributing to political causes?

There were a lot of factors that contributed to the Prop 8 disaster.

What disaster? I prefer to call it the will of the people.

It can only be properly called the will of the people if there is a level playing field, and an informed public. But assuming that those criteria were met, it appears that it is the will of about half of the people that the rights of homosexuals be restricted. Is it your opinion that human rights issues should be decided by a slim majority in a single referendum?


With regard to the constitutionality, I believe that there are two open questions. Firstly, are the rights of gays protected under the US constitution. They certainly are not explicitly protected, but then again neither are women's rights (except the right to vote). Are the rights of gays protected under the religious freedoms provisions? Perhaps. If the court can be convinced that the opposition to the recognition of gay rights are entirely motivated by religious dogma, then they might rule in favor of the gays.

Secondly, should the rights of gays be protected constitutionally. I believe that they should. But that would be more a matter for state and federal legislators than for the courts. And in a country that cannot even pass a constitutional amendment to guarantee equal rights for women, it seems to be a rather long shot.

[East of Eden]

Please cite some sources for this allegation.

http://www.examiner.com/x-7615-Charlest ... r-children

What is the law about non-profit religious organizations contributing to political causes?

Nothing wrong with educating your church members about a moral issue.

It can only be properly called the will of the people if there is a level playing field, and an informed public.

Let me guess, an informed public is one that agrees with you?

But assuming that those criteria were met, it appears that it is the will of about half of the people that the rights of homosexuals be restricted. Is it your opinion that human rights issues should be decided by a slim majority in a single referendum?

Chosen behavior isn't a human rights issue.

[cnorman18]

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.

Can you explain these "common-sense grounds" and why they are unrelated to religion?

I have seen no justification for opposition to gay marriage other than religious. ALL such opposition takes it as a given that homosexuality is either morally evil or some sort of defect. The "common-sense" position to me is that homosexuality is no more "evil" or "defective" than being left-handed.

If you can define opposition to gay marriage on grounds that don't assume that homosexuality is a "bad thing," please post it.

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.

Who's talking about forbidding anyone to vote on whatever grounds? You can vote for slavery on "common-sense grounds" if you like.

What we're talking about is whether the law prohibiting gay marriage is just and constitutional. In the American system, religion itself has no vote and no veto, only the people; and the people themselves are subject to the restrictions of the Constitution. As McC pointed out, a majority vote does not guarantee implementation of any legislation.

If the only justification for a given law is religious dogma, that law is illegal under the Constitution. The number of people who vote for it or their reasons are irrelevant, I agree; but that's not the issue, is it?

There is no separation of church and mind for many of us.

No comment necessary.

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

Like what ML King did.

True enough; and anti-gay religious folk have the same right to promote their views as Dr. King. No one's denying that.

But Dr. King's views prevailed because they were in accord with the concept of JUSTICE and with the CONSTITUTION, not because they were based on Christian beliefs and ideals and were therefore inarguably "right."

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.

Again, no comment necessary.

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?

Establishment of a particular denomination is not the subject of the First Amendment, but establishment of any kind of religion at all. A law which follows the dictates of one group of religions, no matter how many, and forces it upon the rest (like my own) as well as those who choose not to believe, is simply illegal, and cannot be legally enforced. That is the consistent ruling of the US Supreme Court, and in the American system, there is no appeal from that decision except impeachment of the Justices by the Senate on some grounds or other, followed by their conviction at trial by the House and their removal from office. Feel free to start the process.

If the religious left votes for gay marriage because of their religious convictions, is that also an 'establishment' to you?

How can it be? Voting is not "establishment" of anything. That only comes into play when a law is actually passed, and in the case of dropping the prohibition of gay marriage, it doesn't establish anything. Religious people are still free to NOT marry if they are gay, and NOT to perform marriages in their churches (forcing a church to perform gay marriages in contradiction to their beliefs would ALSO be an illegal and unconstitutional interference with religion). If gay marriage were legal, no one would be prevented from doing anything, nor would anyone have his or her rights infringed upon, unlike the situation at present.

The issue is JUSTICE, which is.

That is a matter of opinion, as the Constitution is silent on it.

Here is the first sentence of the Constitution, generally referred to as the "Preamble":

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Further: Justice, in the American legal system, is not a matter of opinion; it is a matter of law. Your personal opinion is your own, but JUSTICE, that is, the actual administration of it, is established by laws and courts, and our Constitution and our legal system is set up to achieve genuine justice as objectively and rationally as possible. It isn't always successful; that's what the appeals process is for.

In other words, your opinion is irrelevant unless you can establish it in a court of law. It is my opinion that O. J. Simpson was as guilty as hell; as a matter of law, he isn't.

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'.

"Society" is not "procreated." If you mean the procreation of children, I don't think there's anything in the Constitution about that either. I rather suspect that children will continue to be born in sufficient numbers for the maintenance of society whether the Government encourages that or not.

If GAYS are ever to have "stable families," gay marriage must be legal. What is the government's interest in ensuring that gay people have no legal structure for the establishment of a "family" at all, and must remain legally single for life?

[aarons914]

I keep reading about people thinking prop 8 was the "will of the people" and other ridiculous stuff. You guys realize if we left civil rights issues to the people we might still have slavery right? You should never leave issues like that up to the masses because in general, people are stupid but even beside that it isn't right for a majority of people to be able to vote a minority's rights away. This issue will go to the Supreme court and from a constitutional standpoint there is no way the gays will lose.

[McCulloch]

That's [homosexuality being taught in kindergartens] happening in some public schools with very young children.

Please cite some sources for this allegation.

http://www.examiner.com/x-7615-Charlest ... r-children

I am afraid to click on the link. Are we going to find objective journalism from something called the "Charleston Conservative Christian Examiner" ? Oh well. Here we go.

As I though, homosexuality is not being taught in kindergartens. Toleration of those who are homosexual is being taught. Yes, it must be a fearsome thing to the radical right that children are being taught not to beat up on fags anymore.

Chosen behavior isn't a human rights issue.

Freedom of religion, freedom of the press, freedom of association, freedom of speech ... all chosen behaviors, all human rights issues.

[East of Eden]

Can you explain these "common-sense grounds" and why they are unrelated to religion?

I have seen no justification for opposition to gay marriage other than religious. ALL such opposition takes it as a given that homosexuality is either morally evil or some sort of defect. The "common-sense" position to me is that homosexuality is no more "evil" or "defective" than being left-handed.

If you can define opposition to gay marriage on grounds that don't assume that homosexuality is a "bad thing," please post it.

My common sense opposition to gay marriage is that for 5,000 years, marriage has been defined as between a man and a woman. I do consider homosexuality to be an abnormality, often resulting from childhood trauma, and in males at least, unhealthy and deadly. Sorry to be graphic, but disease is spread when the human body is used in ways it wasn't designed to be used. Gay couples can't procreate, one of the purposes of marriage. Even in cases of adopton, children get the shorted as they need a mother and a father. Whether you agree with what I've said or not, it had nothing to do with religion.

Who's talking about forbidding anyone to vote on whatever grounds? You can vote for slavery on "common-sense grounds" if you like.

What we're talking about is whether the law prohibiting gay marriage is just and constitutional. In the American system, religion itself has no vote and no veto, only the people;

Most of whom are religious.

and the people themselves are subject to the restrictions of the Constitution.

The Constitution only stops the Federal gov't. from establishing a particular church. Nobody is proposing that be done.

If the only justification for a given law is religious dogma, that law is illegal under the Constitution.

No it isn't, but anyway I've given you some non-religious reasons above.

Establishment of a particular denomination is not the subject of the First Amendment, but establishment of any kind of religion at all. A law which follows the dictates of one group of religions, no matter how many, and forces it upon the rest (like my own) as well as those who choose not to believe, is simply illegal, and cannot be legally enforced. That is the consistent ruling of the US Supreme Court, and in the American system, there is no appeal from that decision except impeachment of the Justices by the Senate on some grounds or other, followed by their conviction at trial by the House and their removal from office. Feel free to start the process.

Any such SCOTUS decisions were wrong, against the wishes of the Founders, and simply judicial activism. Why does the SCOTUS itself begin with an invocation, and have a depiction of Moses? Why our national motto, paid chaplains, etc., etc.?

How can it be? Voting is not "establishment" of anything. That only comes into play when a law is actually passed, and in the case of dropping the prohibition of gay marriage, it doesn't establish anything.

But if the law were passed in part based on the votes of the religious left, it would be established. That's only wrong when the religious right votes?

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

What does that have to do with gay marriage?

If GAYS are ever to have "stable families," gay marriage must be legal. What is the government's interest in ensuring that gay people have no legal structure for the establishment of a "family" at all, and must remain legally single for life?

That's one opinion. I say give them civil unions and quite brainwashing the kids.

[East of Eden]

I am afraid to click on the link. Are we going to find objective journalism from something called the "Charleston Conservative Christian Examiner" ?

I'm sure you would be.

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

Those believing homosexual behavior is immoral should NOT be subjected to such propaganda. Amazing we tell kids smoking is unhealthy, but gay sex (which shortens the lifespan as much as smoking) is OK.

Yes, it must be a fearsome thing to the radical right that children are being taught not to beat up on fags anymore.

Straw-bogeyman. I'm pretty familiar with the religious right and have never heard anyone advocating that.

Freedom of religion, freedom of the press, freedom of association, freedom of speech ... all chosen behaviors, all human rights issues.

Possibly, but it is wrong to equate the gay issue with race.

[Lux]

Those believing homosexual behavior is immoral should NOT be subjected to such propaganda.

So, are you against schools teaching kids to treat people of all races equally? There are people out there who believe other races to be inferior. Should their kids be "subjected to racial equality propaganda"?

Amazing we tell kids smoking is unhealthy, but gay sex (which shortens the lifespan as much as smoking) is OK.

As the daughter of someone struggling with lung cancer I CHALLENGE this claim.
And if you're going to say STDs, no. Because the truth is that any kind of sex could possibly result in a life-threatening condition if practiced recklessly. It is not exclusive to homosexual sex.