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.

[cnorman18]

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'm quite willing to admit that homophobic bigotry can exist absent religion.

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.

That was my point.

[JoeyKnothead]

I think this thread is a great example of the lengths some folks would go to in order to suppress the rights and freedoms of others. If I accepted each and every argument for banning homosexual marriage, from "it's icky", "they can't provide a mother and father" and on to "folks'll marry dogs", I still cannot escape that innate sense that restricting rights to some who are otherwise legitimate and law abiding, and offering them to others is immoral, unconstitutional, and a plague on humanity.

Homosexuals, for whatever else we may say, are still fellow human beings. They live, love, and bleed not unlike each and every other person on the face of this planet. To say homosexuals can't provide loving, caring, nurturing homes with children has NOT been shown, nor has it been shown especially that homosexuals who eschew child rearing would in any way affect the rights, privileges, and et cetera of others.

As I, and I hope the observer, read this thread, I see nothing that tells me homosexuals are all that different from the rest of the population - from promiscuity to disease and beyond. I'm sure we can all find supporting data for any notion we can think of, but the problem lies in using this data in an attempt to restrict for one group what we offer another or more importantly ourselves.

It is far past time we let go of this "otherness" we perceive in homosexuals and allow them the full rights and privileges we demand for ourselves.

IMO, the argument of "they can't provide a mother and father" is among the least acceptable, and most bigotted reasons for preventing others their freedoms. There are many families that stay together where the mother and / or the father are "scum of the Earth", and there are real, lasting harms to some of the children in such families. No amount of statistics will change this fact.

The whole "mother and father" angle reads to me like the last desperate attempt of an argument that is at it's core discriminatory, bigotted, unfounded, and likely based on one's religious position.

Who do you want to be? Do you want to be one who allows others the freedom of their conscience, the freedom of their love, the freedom of being human? Or do you want to be one who restricts others to 'closets', to the fringes, to the margins of society?

I don't care how many stats, studies, and appeals to authority - godly or not - one can present. The bottom line is these are our fellow human beings, they are otherwise law abiding citizens who share many of our aspirations and hopes, they are members of our own families, our own blood, and they deserve to be treated as such. Their only "problem" is they happen to have sexual preferences other folks - who are not bound to accept or engage in such - would declare "unclean", "unacceptable", "ungodly", or any other such term of disagreement.

I can not be convinced one who would prevent homosexuals the rights and privileges they declare, and enjoy for themselves is not a bigot, hypocrite, or some other form of OPPRESSOR.

[cnorman18]

I think this thread is a great example of the lengths some folks would go to in order to suppress the rights and freedoms of others. If I accepted each and every argument for banning homosexual marriage, from "it's icky", "they can't provide a mother and father" and on to "folks'll marry dogs", I still cannot escape that innate sense that restricting rights to some who are otherwise legitimate and law abiding, and offering them to others is immoral, unconstitutional, and a plague on humanity.

Homosexuals, for whatever else we may say, are still fellow human beings. They live, love, and bleed not unlike each and every other person on the face of this planet. To say homosexuals can't provide loving, caring, nurturing homes with children has NOT been shown, nor has it been shown especially that homosexuals who eschew child rearing would in any way affect the rights, privileges, and et cetera of others.

As I, and I hope the observer, read this thread, I see nothing that tells me homosexuals are all that different from the rest of the population - from promiscuity to disease and beyond. I'm sure we can all find supporting data for any notion we can think of, but the problem lies in using this data in an attempt to restrict for one group what we offer another or more importantly ourselves.

It is far past time we let go of this "otherness" we perceive in homosexuals and allow them the full rights and privileges we demand for ourselves.

IMO, the argument of "they can't provide a mother and father" is among the least acceptable, and most bigotted reasons for preventing others their freedoms. There are many families that stay together where the mother and / or the father are "scum of the Earth", and there are real, lasting harms to some of the children in such families. No amount of statistics will change this fact.

The whole "mother and father" angle reads to me like the last desperate attempt of an argument that is at it's core discriminatory, bigotted, unfounded, and likely based on one's religious position.

Who do you want to be? Do you want to be one who allows others the freedom of their conscience, the freedom of their love, the freedom of being human? Or do you want to be one who restricts others to 'closets', to the fringes, to the margins of society?

I don't care how many stats, studies, and appeals to authority - godly or not - one can present. The bottom line is these are our fellow human beings, they are otherwise law abiding citizens who share many of our aspirations and hopes, they are members of our own families, our own blood, and they deserve to be treated as such. Their only "problem" is they happen to have sexual preferences other folks - who are not bound to accept or engage in such - would declare "unclean", "unacceptable", "ungodly", or any other such term of disagreement.

I can not be convinced one who would prevent homosexuals the rights and privileges they declare, and enjoy for themselves is not a bigot, hypocrite, or some other form of OPPRESSOR.

Well said, Joey. Rationalizations and excuses for discrimination and bigotry are thick on the ground here, but you've pretty well cut through the nonsense and outlined the essential elements of the debate.

[East of Eden]

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

Your little personal digs, name-calling, (bigotry) etc. By your reasoning over half the country are bigots, including Obama.

Reeeeally?

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

Not anymore than someone tempted by alcoholism or to cheat on his wife. From the Chrsitian perspective, the temptation isn't a sin, acting on it in a sinful way is.

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.

Really dumb analogy, which would prevent any man from marrying as all have been tempted, Jesus included.

Of course you do. You think that gays should be punished for being gay and suppressed by denying them the right to marry.

Where is the Constitutional right for any arrangement to get married. By your reasoning your name-calling extends to those gays who didn't care about marriage but wanted civil unions.

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.

Wrong again, for example I don't think biological brothers and sisters should be able to get married, do you or are you a bigot on that one?

Sorry, that's not good enough. Marriage has been established in American law as a basic legal right, which even convicted felons have.

As long as they are a man and women, of course. Is that supposed to be an argument?

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.

Your opinion, I'd say the same about your lack of arguments for gay marriage.

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

Now you're just having a fit.

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?

Of course not, they provide a male and female role model. What other weird examples can you bring up that are off topic?

[micatala]

Not anymore than someone tempted by alcoholism or to cheat on his wife. From the Chrsitian perspective, the temptation isn't a sin, acting on it in a sinful way is.

I would tend to agree, but there is the following passage from Matthew to consider.

27"You have heard that it was said, 'Do not commit adultery.'[e] 28But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. 29If your right eye causes you to sin, gouge it out and throw it away. It is better for you to lose one part of your body than for your whole body to be thrown into hell. 30And if your right hand causes you to sin, cut it off and throw it away. It is better for you to lose one part of your body than for your whole body to go into hell.

I realize East of Eden and cnorman have been contesting the sin issue for some number of posts now. I would suggest this is not really on topic. The Supreme Court is certainly not going to weigh in on whether homosexual acts or desires are sinful or not.

[cnorman18]

Not anymore than someone tempted by alcoholism or to cheat on his wife. From the Chrsitian perspective, the temptation isn't a sin, acting on it in a sinful way is.

I would tend to agree, but there is the following passage from Matthew to consider.

27"You have heard that it was said, 'Do not commit adultery.'[e] 28But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. 29If your right eye causes you to sin, gouge it out and throw it away. It is better for you to lose one part of your body than for your whole body to be thrown into hell. 30And if your right hand causes you to sin, cut it off and throw it away. It is better for you to lose one part of your body than for your whole body to go into hell.

I realize East of Eden and cnorman have been contesting the sin issue for some number of posts now. I would suggest this is not really on topic. The Supreme Court is certainly not going to weigh in on whether homosexual acts or desires are sinful or not.

I'm not "contesting the sin issue." EoE can consider being gay or engaging in homosexual acts as "sinful" to whatever degree he desires; that's of no interest to me. My point is that if that is the only reason to ban gay marriage, which it patently is, such a law is unconstitutional.

[East of Eden]

I'm not "contesting the sin issue." EoE can consider being gay or engaging in homosexual acts as "sinful" to whatever degree he desires; that's of no interest to me. My point is that if that is the only reason to ban gay marriage, which it patently is, such a law is unconstitutional.

It would be interesting to see what the SCOTUS would say. Do you know if this is heading there?

[East of Eden]

I would tend to agree, but there is the following passage from Matthew to consider.

27"You have heard that it was said, 'Do not commit adultery.'[e] 28But I tell you that anyone who looks at a woman lustfully has already committed adultery with her in his heart. 29If your right eye causes you to sin, gouge it out and throw it away. It is better for you to lose one part of your body than for your whole body to be thrown into hell. 30And if your right hand causes you to sin, cut it off and throw it away. It is better for you to lose one part of your body than for your whole body to go into hell.

There's a difference between a bird flying over your head and allowing it to build a nest in your hair. If we can extrapolate this verse to homosexual temptation, IMHO Jesus would say even lustfully thinking about homosexual sin is an offense.

Whether someone is heterosexual or homosexual, it is always possible to do the will of God.

[cnorman18]

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

Your little personal digs, name-calling, (bigotry) etc. By your reasoning over half the country are bigots, including Obama.

Not quite the same. You have trumpeted and promoted the most vicious kind of stereotyping and smears of gay people - and you have dismissed hate crimes against gays as insignificant. Obama has done neither. In your case, I don't think "bigot" is "name-calling." I'd say it's an objectively accurate description.

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.

Wrong again, for example I don't think biological brothers and sisters should be able to get married, do you or are you a bigot on that one?

I think I'll just let that one stand. If that isn't a fatuous and disingenuous dodge, I've never seen one. I OBVIOUSLY meant otherwise unrelated people. Are you trying to put support for unlawful incest in my mouth now?

Honestly, how low will you stoop to defend this nonsense?

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.

Your opinion, I'd say the same about your lack of arguments for gay marriage.

If that's just my opinion, why can't you give any reasons that would apply equally to non-gay people? That's a FACT.

And what "lack of arguments for gay marriage"? Justice, constitutionality, equal protection under the law... Are those not "arguments"?

My calling you a "hypocrite" isn't "name-calling," either, by the way. It's also an objective and accurate description from your own arguments.

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

Now you're just having a fit.

Is that an effort to distract from my points, so you won't have to respond to what I've said? Not going to work.

Everyone here sees the transparent hypocrisy of your phony arguments: all your objections only apply if the couple is GAY, and you're not fooling anyone about that. A straight couple, or as noted below, even same-sex caregivers that are NOT gay, with PRECISELY the same problems and risks that you pretend to be so worried about, should still be legally able to marry or raise children, according to you. Their possible problems should only result in the outlawing of their marriages or right to raise children if the couple is GAY.

No matter how you try to distract and conceal and dodge it, you haven't been able to address that FACT about your "position" AT ALL, which makes the moral and logical hypocrisy of your "position" obvious.

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?

Of course not, they provide a male and female role model. What other weird examples can you bring up that are off topic?

Did you miss "same-sex caregivers"? I was talking about two brothers or two sisters raising children. Do you think THAT ought to be legal, even though they don't provide a male and female role model? Yes or no?

Or did you "miss the point" so you wouldn't have to answer that?

[East of Eden]

Not quite the same. You have trumpeted and promoted the most vicious kind of stereotyping and smears of gay people - and you have dismissed hate crimes against gays as insignificant. Obama has done neither.

Way to change the subject again. Obama has said he thinks marraige should be between a man and woman, the subject of this thread.

In your case, I don't think "bigot" is "name-calling." I'd say it's an objectively accurate description.

You are pathetic. See rule #1 on this forum.

I think I'll just let that one stand. If that isn't a fatuous and disingenuous dodge, I've never seen one.

Another dodge. I'm sure we could find someone support marriage of biological siblings. IS THAT OK OR ARE YOU A BIGOT?

OBVIOUSLY meant otherwise unrelated people. Are you trying to put support for unlawful incest in my mouth now?

Gay marriage is unlawful most places.

And what "lack of arguments for gay marriage"? Justice,

Your opinion.

constitutionality, equal protection under the law... Are those not "arguments"?

Not really, just more opinions. You aren't the SCOTUS.

My calling you a "hypocrite" isn't "name-calling,"

......and black is really white.

Everyone here sees the transparent hypocrisy of your phony arguments:

Argumentum ad populum. 52% of the people of CA and most other states think I'm right and you're wrong.

all your objections only apply if the couple is GAY, and you're not fooling anyone about that. A straight couple, or as noted below, even same-sex caregivers that are NOT gay, with PRECISELY the same problems and risks that you pretend to be so worried about, should still be legally able to marry or raise children, according to you. Their possible problems should only result in the outlawing of their marriages or right to raise children if the couple is GAY.

No matter how you try to distract and conceal and dodge it, you haven't been able to address that FACT about your "position" AT ALL, which makes the moral and logical hypocrisy of your "position" obvious.

Did you miss "same-sex caregivers"?

Yes I did, sorry about that.

[qutoe]I was talking about two brothers or two sisters raising children. Do you think THAT ought to be legal, even though they don't provide a male and female role model?

Fine, but it would be a sub-optimal situation. What if the two sisters or brothers wanted to marry, is that OK or are you a bigot? I figure if I keep asking you may answer some day.