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.

[McCulloch]

So you agree believing homosexual behavior to be immoral is fine for some?

On this, I am in the odd position of agreeing with the Apostle Paul. to him who thinks anything to be unclean, to him it is unclean. (Romans 14:14).
If you believe that homosexual behavior is immoral, then to you it is immoral. And I am fine with that.

How about we teach all kids that when they grow up, they might not follow the religion of their parents?

.....and that when some grow up, they might not follow the Godlessness of their parents. My wife and both parents are in this category.

Absolutely. As parents, our job is not to instill our particular values into our kids. Our job is to get them to think for themselves, to give them the skills necessary to sort out the junk from that which is valuable.

Beginning with the removal of any reference to God in our constitutions and the separation of theology from the legislative process. Oh yes, for the good old days of the Dark Ages!

They weren't near as dark as the atheistic Communist failed experiment.

Yes! I am against any form of established religion, even the establishment of atheism. Governments should be secular, that is they should be indifferent to religion, not for religion and not against religion either, neither promoting religion nor inhibiting them.

It is your opinion that it is a right for two of the same sex to marry.

Yes. My opinion is shared by the Parliament and the judiciary of my own country and of a growing number of other countries.

But the left isn't tolerant of other's religious beliefs,

Now, I am not quite sure who you are including in the category of the left. However, I am completely unaware of the intolerance you speak of in North America or Western Europe. In fact, it has been my experience that when the religious complain of intolerance in the western democracies, it is often that they feel that they are being prevented from imposing their own views on others.

Exception: religious costumes in France.

not even for small kids.

Small kids generally do not have religious beliefs, political opinions, economic theories or belong to any specific school of philosophy.

This is why alternatives to public schools have grown so. Public schools have become the maddrasses of the secular left.

That's right. The underfunding of the public system in the US has nothing to do with it. Nor the fact that the public system must take the trouble students that the private schools refuse to take.

But, you are correct. The private schools have become a haven for the children of parents who are afraid of the modern tolerant society.

[East of Eden]

From Post 49:

...Public schools have become the maddrasses of the secular left.

It is this type of language that turns me off to the religious or political right.

I can't recall the name, but I remember recently a conservative who said the vitriolic language used in the health care debate "tied Republican hands", where any compromise was seen as "selling out", or some other such vulgarity. When we demonize one another we are no longer able to reflect with reason on what we have to say. I would much prefer one present their arguments on the merits of the arguments, and quit demonizing the other side of an otherwise simple disagreement.

IMO, this "maddrasses" angle here is an attempt to stir emotions more than present a valid argument. After the events of 9/11, and with the war on Islamic extremism - terrorism - I can't help but conclude such language is used as an insult, a demonizing, a slander against otherwise good folks East of Eden happens to disagree with.

East of Eden is a very, very, very, very capable political debater, who makes some very valid, very accurate points across many topics. This is why I'm put off by his use of this language here. I would implore East of Eden to refrain from such rhetorical trickery, and to debate with the skill I've seen him use over and over again.

You're better than that East of Eden, and what's more, I know you know you are.

(edit for clarity)

You are right, Joey, that term adds nothing to the debate, and is overbroad to the point of not being accurate. There are many very good public school teachers and students out there. They rarely make the headlines. You are always free to correct me when I violate the civility of this forum, which is appreciated and not that common during internet discussions of such volatile topics.

[Cephus]

So you agree believing homosexual behavior to be immoral is fine for some?

Anyone is welcome to believe whatever they want. What is not alright is to put those beliefs into action. You can be racist if you want, you just cannot publically discriminate. You can be sexist if you want, you cannot refuse to hire women. You can be a religious bigot if you like, but outside of very narrow boundaries, you cannot consider religion in your hiring processes. You can hate homosexuality all you want, you cannot do anything to discriminate against homosexuals.

There's a difference between belief and practice. So long as you keep your hatred in your own head, feel free. Once it comes out though, you need to act like a socially responsible person.

[East of Eden]

Anyone is welcome to believe whatever they want. What is not alright is to put those beliefs into action.

I completely reject that.

You can be racist if you want, you just cannot publically discriminate. You can be sexist if you want, you cannot refuse to hire women. You can be a religious bigot if you like, but outside of very narrow boundaries, you cannot consider religion in your hiring processes. You can hate homosexuality all you want, you cannot do anything to discriminate against homosexuals.

There's a difference between belief and practice. So long as you keep your hatred in your own head, feel free. Once it comes out though, you need to act like a socially responsible person.

We disagree on gay marriage, it would be nice if you would drop the name-calling.

[McCulloch]

You can be racist if you want, you just cannot publicly discriminate. You can be sexist if you want, you cannot refuse to hire women. You can be a religious bigot if you like, but outside of very narrow boundaries, you cannot consider religion in your hiring processes. You can hate homosexuality all you want, you cannot do anything to discriminate against homosexuals.

There's a difference between belief and practice. So long as you keep your hatred in your own head, feel free. Once it comes out though, you need to act like a socially responsible person.

We disagree on gay marriage, it would be nice if you would drop the name-calling.

The point of Cephus' post was not to call you names. He, I think, was using the word you in the sense of an unspecified individual or group of individuals. As in You have to be at least 1 meter tall to go on this ride.

[East of Eden]

You can be racist if you want, you just cannot publicly discriminate. You can be sexist if you want, you cannot refuse to hire women. You can be a religious bigot if you like, but outside of very narrow boundaries, you cannot consider religion in your hiring processes. You can hate homosexuality all you want, you cannot do anything to discriminate against homosexuals.

There's a difference between belief and practice. So long as you keep your hatred in your own head, feel free. Once it comes out though, you need to act like a socially responsible person.

We disagree on gay marriage, it would be nice if you would drop the name-calling.

The point of Cephus' post was not to call you names. He, I think, was using the word you in the sense of an unspecified individual or group of individuals. As in You have to be at least 1 meter tall to go on this ride.

'Bigot' and 'Hate' are name-calling. If I wanted to stoop to that level I could just as easily use them against his religiophobia.

[Clownboat]

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.

Seriously Norm, really? You don't think there are groups of straight people out there that just simply find it ichy and for that reason alone would vote against it? (Whether that stance it right or wrong is a separate discussion, but the fact still remains there are plenty out there like that).

I have a hard time believing you really think that it is 100% religiously motivated.

[Cephus]

Seriously Norm, really? You don't think there are groups of straight people out there that just simply find it ichy and for that reason alone would vote against it? (Whether that stance it right or wrong is a separate discussion, but the fact still remains there are plenty out there like that).

I have a hard time believing you really think that it is 100% religiously motivated.

While certainly it is possible, I've yet to see a single outspoken anti-gay individual or group that was not motivated by religion. Not one. There are probably some who might vote against it, simply because they find it "icky", but those are likely in the extreme minority. The overwhelming majority are the religious zealots who think they get to decide what everyone else gets to do.

[cnorman18]

Seriously Norm, really? You don't think there are groups of straight people out there that just simply find it ichy and for that reason alone would vote against it? (Whether that stance it right or wrong is a separate discussion, but the fact still remains there are plenty out there like that).

I have a hard time believing you really think that it is 100% religiously motivated.

While certainly it is possible, I've yet to see a single outspoken anti-gay individual or group that was not motivated by religion. Not one. There are probably some who might vote against it, simply because they find it "icky", but those are likely in the extreme minority. The overwhelming majority are the religious zealots who think they get to decide what everyone else gets to do.

I'll agree with Cephus on this. Opposition to gay marriage may be 99% religious, and not 100%, but no less than that, from what I've seen. I've asked for anyone to cite a group that opposes gay marriage on nonreligious grounds, and there just don't seem to be any,

And that, by the way, is why the Court will probably rule in favor of gay marriage. If the ONLY reasons to oppose it are religious in nature, which they are, the law in unconstitutional. The other reasons which have been proposed here - no children, disease, etc. - are basically phony, stalking horses for religion; they apply to many straight couples as well, but the law does not affect them and no one's interested in making it do so. QED.

Opposition to gay marriage on the grounds of religious prohibition is a position anyone is allowed to take. But that prohibition is not to be forced on others who don't follow those religions in the American system, and hiding religious scruples behind fake secular objections is sheer hypocrisy.

[Clownboat]

Seriously Norm, really? You don't think there are groups of straight people out there that just simply find it ichy and for that reason alone would vote against it? (Whether that stance it right or wrong is a separate discussion, but the fact still remains there are plenty out there like that).

I have a hard time believing you really think that it is 100% religiously motivated.

While certainly it is possible, I've yet to see a single outspoken anti-gay individual or group that was not motivated by religion. Not one. There are probably some who might vote against it, simply because they find it "icky", but those are likely in the extreme minority. The overwhelming majority are the religious zealots who think they get to decide what everyone else gets to do.

I'll agree with Cephus on this. Opposition to gay marriage may be 99% religious, and not 100%, but no less than that, from what I've seen. I've asked for anyone to cite a group that opposes gay marriage on nonreligious grounds, and there just don't seem to be any,

And that, by the way, is why the Court will probably rule in favor of gay marriage. If the ONLY reasons to oppose it are religious in nature, which they are, the law in unconstitutional. The other reasons which have been proposed here - no children, disease, etc. - are basically phony, stalking horses for religion; they apply to many straight couples as well, but the law does not affect them and no one's interested in making it do so. QED.

Opposition to gay marriage on the grounds of religious prohibition is a position anyone is allowed to take. But that prohibition is not to be forced on others who don't follow those religions in the American system, and hiding religious scruples behind fake secular objections is sheer hypocrisy.

I believe there are more non religious homophobes out there than you guys think. Homophobia does not stem from religion alone... (I do feel it is probably the greatest cause of it). That, and there are also simply people out there that do not like homosexuals or their lifestyle in general. (That and black haters, jew haters, joeyknuccione haters ... the list goes on and on. Again, religion may cause much of that hate too, but not 100% or 99%)

No matter though, I also think the courts will rule in favor of gay marriage, I just think you guys are trying to downplay the true homophobes and put 100% (now 99%) of the blame on religious people, and I personally don't see that as accurate.

If you want to argue that the true homophobes are too small of a minority to be allowed to have an opinion on gay marriage, that would be different. To disregard their existence, and to put all the blame on religion is basically taking their right to vote away. (If there are just being lump in with religious gay haters who vote should not count anyway).