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.

[JoeyKnothead]

From Post 150:

Arguing about promiscuity is nothing more than projecting one's morality onto others.

Something we all do.

Fair 'nuff, except for that whole restricting the rights and freedoms of others because one objects on moral grounds.

If individuals with same-sex feelings want treatment to change that, why is that a problem? As for the APA, they long ago have bought into the gay agenda. Scientist are no less likely to be ideologically driven than non-scientists.

It's not a problem to want to change, it is a problem to present a biased source and data.

It is my position it doesn't matter regarding the rights and freedoms of individuals to live their lives according to their consciences.

It was brought up to see if we can at least get agreement on the promiscuity of homosexuals, something that far from being a 'smear', is ackowledged by gays themselves.

I see nothing here to negate my position. Whether one wants to carry on with one or a hundred and one is their own business.

Too often it is. As I pointed out in a previous post which East of Eden never addressed, there are more than a few families with female and male "role models" that are anything but.

Which proves what?

See the post you seem to have skipped over or read without response.

Who makes the determination as to what is optimal?
Doesn't "loving, doting parent" create an "optimal"?
All I see in the 'male and female parent is best' argument is a relatively sexist one.

For which sex?...>reference to David Blankenhorn<

I'll take that as "all who agree with me are experts in the field".

Go ahead, but place a ban on producing offspring because such close bloodlines can be shown to significantly increase chances of disabilities in offspring.

So you are making a non-religious argument against this form of marriage?

A scientific argument. Whether it aligns with other folks' a/religious beliefs is on them.

That'n was legal not too long ago. In our more 'enlightened' age we understand such young children seldom have the capacity of informed consent, thus bans in this regard.

Another non-religious objection to a form of marriage.

Based on a reasonable and logical conclusion drawn from psychology. A child of thirteen is not generally sufficiently mature to understand what all is involved with marriage.

Such is still somewhat futile in debate, where we "seriously" seek to understand one another's positions. "In your opinion" does little to negate or confirm what one has presented, opinion or not.

It is a way of pointing out that many statements on this forum are opinion, not fact, including me.

Plenty fair, and I agree to much of that there "opinion spoutin'" myself.

That said, surely you'd agree that just saying something is opinion doesn't really show that opinion to be incorrect or correct.

Unless that person's a/religious position is they should be able to marry the person they love.

You've already pointed out examples above where people shouldn't be able to marry the person they love.

Based on informed consent.

Let's look at this'n in context...

The complaint is that some Christians want to tell EVERYONE how to live out THEIR lives BY FORCE OF LAW, whether they're Christians or not. You think that's what "religious freedom" means. That's rather like saying "Freedom of Speech" means you should be free only to say things that I agree with. It's ridiculous on its face.

My excersing religious freedom doesn't negate anyone else's.

Unless that person's a/religious position is they should be able to marry the person they love.

Voting to block another's a/religious freedom is impacting their a/religious freedom. It can be no other way.

Notice here the problem originates with Christians using their vote to enforce their perspective. A reasonable thing on it's face, but the problem lies in how can we know the Christian God is the one we should be seeking to please?

East of Eden is ostensibly saying if we don't allow the Christian to prevent others their freedom, then we have somehow blocked East of Eden's freedom.

I would then ammend my statement or claim to such as "We should be able to restrict the rights of others to restrict the rights of others". How many itterations of that statement before we realize folks should be as free as our multi-cultural, multi-religious society can allow?

Notice too East of Eden, as is his wont, has not included the more important part of my statement, where the voting to block another's a/religious freedom is a direct act of "negating" another's a/religious freedom. Of course to some extent we can and do block religious freedoms, notice there's not a whole lot of human sacrifice anymore, or putting folks in the stocks 'cause they skip a day of church.

The point here is that we should seek to include as many as possible in the blessings of this life. As a government entity offers privileges to married folks, so too should that government include other folks regarding who that government will offer privileges to.

And I will say again, all laws are an imposition of someone's morality on others who disagree.

And as I've said, such laws should seek the least imposition possible.

The very issue here is the violation of the Constitution, where the government offers freedoms and privileges to one group, and disallows them to another on the basis of them having sex with another consenting adult.

Such alleged Constitutional violation has yet to be determined, and anyway I thought you believed that to be just an ancient document that shouldn't constrict us?

I've said we should look to the Constitution for leadership, and should never hold ourselves bound to it. I don't think I've ever used the term "constrict", and consider it's use here a rhetorical tool to imply some harm to others, as well as a form of psychological projection, where the individual seeks to "constrict" the rights of homosexuals to marry the person they love.

We've made societal determination that girls of such a young age can't give informed consent.

And in CA and many other states we have made a societal determination that marriage is between a man and a woman.

And folks seek to overturn this vote.

Before it's said, I do not now, nor have I ever advocated allowing young children to marry.

Credibility is stretched when one rightfully declares they should vote their conscience, and that conscience is religious, but they don't use religion to inform their vote.

So what if it is? That is truly an extremist position. I don't believe in the separation of church and mind.

Then you agree yours is a position based on religion?

Then we get back to showing one's religious position should be considered above another's a/religious position.

Regardless of whether religiously based or not, the law is unfair, and unconstitutionally so on the grounds it preserves for some what it denies others.

Unconstitutional in your opinion.

I take that to mean you can't dispute it.

What does promiscuity have to do with folks seeking to marry one another anyway? If the parties involved agree to an open marriage I see no insurmountable problems.

From a practical standpoint it doesn't produce stable marriages, which kids need.

If all concerned enter into the deal with the promiscuity part of it, you have no claim.

I notice many heterosexual couples are "plagued" by promiscuity, are we to prevent those marriages?

Those who prevent their attempting to enjoy the "married to the one they love lifestyle".

Again, you've shown two examples above where you prevent people from enjoying being "married to the one they love ".

And AGAIN YOU STRIP THE CONTEXT.

Why?

Let's take a gander...

Does that mean "force everyone to live like you think Christians should"?

Who is forcing gays to stop their chosen lifestyle?

Those who prevent their attempting to enjoy the "married to the one they love lifestyle".

The government bestows benefits and privileges on married couples, and preventing these to people based on who they prefer to have sex with is attempting to "stop their chosen lifestyle", when their "chosen lifestyle" is to live as a married couple.

This is not about children, this is about grown, consenting adults who seek to enjoy the same rights and benefits afforded to other members of society.

[East of Eden]

Fair 'nuff, except for that whole restricting the rights and freedoms of others because one objects on moral grounds.

Which non-theists do also, unless you're saying non-theists have no moral basis.

It's not a problem to want to change, it is a problem to present a biased source and data.

Who doesn't have a bias? The APA does.

See the post you seem to have skipped over or read without response.

I skipped over it because it was an irrelevant comment. Because some violate the ideal doesn't mean you throw out the ideal.

I am not obligated to, let alone have time for, answer every comment.

I'll take that as "all who agree with me are experts in the field".

Take it as an example of someone with a non-religious objection to gay marriage, something CNorman claims doesn't exist.

A scientific argument. Whether it aligns with other folks' a/religious beliefs is on them.

As was the piece I put up on Mr. Blankenship's objection to gay marriage.

Based on a reasonable and logical conclusion drawn from psychology. A child of thirteen is not generally sufficiently mature to understand what all is involved with marriage.

Your qualifier is noted. My qualifier and that of 52% of the people of CA is that two people of the same gender are not marriage candidates.

Plenty fair, and I agree to much of that there "opinion spoutin'" myself.

Once again we agree. It's irritating to see the egotistical opinions here presented as unquestionable facts.

That said, surely you'd agree that just saying something is opinion doesn't really show that opinion to be incorrect or correct.

Right, it shows it to be opinion, not fact. A prime example of that is declaring something unconsitutional that the SCOTUS hasn't decided on yet. If anyone knows for sure how the SCOTUS will rule on anything, I suggest they also go buy a winning lottery ticket.

Based on informed consent.

Your qualifier, which I agree with. Off topic, but makes me wonder why 15 year olds can get an abortion without parental consent.........

Notice here the problem originates with Christians using their vote to enforce their perspective. A reasonable thing on it's face, but the problem lies in how can we know the Christian God is the one we should be seeking to please?

That's up to each individual.

East of Eden is ostensibly saying if we don't allow the Christian to prevent others their freedom, then we have somehow blocked East of Eden's freedom.

How am I preventing other's freedeom anymore than you are by opposing marriage for others in at least two other examples?

I would then ammend my statement or claim to such as "We should be able to restrict the rights of others to restrict the rights of others". How many itterations of that statement before we realize folks should be as free as our multi-cultural, multi-religious society can allow?

Why try to stop religious people from voting their conscience?

Notice too East of Eden, as is his wont, has not included the more important part of my statement, where the voting to block another's a/religious freedom is a direct act of "negating" another's a/religious freedom. Of course to some extent we can and do block religious freedoms, notice there's not a whole lot of human sacrifice anymore, or putting folks in the stocks 'cause they skip a day of church.

The point here is that we should seek to include as many as possible in the blessings of this life. As a government entity offers privileges to married folks, so too should that government include other folks regarding who that government will offer privileges to.

The question addressed in the CA referendum is who should be allowed to marry. Even you don't think everyone should be able to.

I've said we should look to the Constitution for leadership, and should never hold ourselves bound to it.

Then why bring up what you think the Constitution intended?

Before it's said, I do not now, nor have I ever advocated allowing young children to marry.

Very sensible of you. Just be glad you're not being called a 'bigot' and 'hater' for your position.

Then you agree yours is a position based on religion?

To some degree. Eveyone's opinions are influenced by their world-view, including you.

Then we get back to showing one's religious position should be considered above another's a/religious position.

Only if they get the most votes.

I take that to mean you can't dispute it.

It means that the consitutionality of it hasn't been decided, making your view simply an opinion, as is mine.

And AGAIN YOU STRIP THE CONTEXT.

Why?

Let's take a gander...

Does that mean "force everyone to live like you think Christians should"?

Who is forcing gays to stop their chosen lifestyle?

Those who prevent their attempting to enjoy the "married to the one they love lifestyle".

The government bestows benefits and privileges on married couples, and preventing these to people based on who they prefer to have sex with is attempting to "stop their chosen lifestyle", when their "chosen lifestyle" is to live as a married couple.

This is not about children, this is about grown, consenting adults who seek to enjoy the same rights and benefits afforded to other members of society.

Devout Mormons and Muslims would disagree with you, especially since the 'prophet' married a 6 year old. Regardless, you are making a moral judgement that such marriages are wrong. Why is that OK but not OK for 52% of Californians to make their own moral judgement on Prop. 8?

[JoeyKnothead]

Time presses, but I should address this'n...

Just be glad you're not being called a 'bigot' and 'hater' for your position.

I for sure used the term 'bigot' in this thread (and likely others), and have been known to use 'hater', and so agree I'm guilty here.

My intent was to use the word bigot as a 'clinical' term, but even that is easily abused or at best misunderstood. I didn't offer the apology / retraction when I saw otseng present it so as not to continue to drag the thread off topic.

With that, and with my previous words directed at East of Eden, I offer an apology, and a promise to try to remove those words from my vocabulary.

East of Eden, best I can tell, is a decent person who I happen to disagree with.

I'll try to get back to the hollerin' and carryin' on asap.

[East of Eden]

Time presses, but I should address this'n...

Just be glad you're not being called a 'bigot' and 'hater' for your position.

I for sure used the term 'bigot' in this thread (and likely others), and have been known to use 'hater', and so agree I'm guilty here.

My intent was to use the word bigot as a 'clinical' term, but even that is easily abused or at best misunderstood. I didn't offer the apology / retraction when I saw otseng present it so as not to continue to drag the thread off topic.

With that, and with my previous words directed at East of Eden, I offer an apology, and a promise to try to remove those words from my vocabulary.

East of Eden, best I can tell, is a decent person who I happen to disagree with.

I'll try to get back to the hollerin' and carryin' on asap.

Very decent of you, and I'll try to not use the word 'lie' in the future. Both words in question are somewhat inflammatory personal digs that aren't helpful in a debate.

[cnorman18]

Time presses, but I should address this'n...

Just be glad you're not being called a 'bigot' and 'hater' for your position.

I for sure used the term 'bigot' in this thread (and likely others), and have been known to use 'hater', and so agree I'm guilty here.

My intent was to use the word bigot as a 'clinical' term, but even that is easily abused or at best misunderstood. I didn't offer the apology / retraction when I saw otseng present it so as not to continue to drag the thread off topic.

With that, and with my previous words directed at East of Eden, I offer an apology, and a promise to try to remove those words from my vocabulary.

East of Eden, best I can tell, is a decent person who I happen to disagree with.

I'll try to get back to the hollerin' and carryin' on asap.

Very decent of you, and I'll try to not use the word 'lie' in the future. Both words in question are somewhat inflammatory personal digs that aren't helpful in a debate.

Let me sign in here too. I apologize also; I do tend to get a trifle uncivil from time to time, and I've got less right to do that than anyone here - we moderators are supposed to set good examples. "Bigot" was never appropriate, and I'm sorry.

Strong disagreement can lead to strong words. It's better if we all remember - hey, it's just an Internet debate. We aren't deciding national policy here; we're just arguing among ourselves. Keeping this community civil and friendly is more important than any single issue.

Be well, to both of you.

[East of Eden]

Time presses, but I should address this'n...

Just be glad you're not being called a 'bigot' and 'hater' for your position.

I for sure used the term 'bigot' in this thread (and likely others), and have been known to use 'hater', and so agree I'm guilty here.

My intent was to use the word bigot as a 'clinical' term, but even that is easily abused or at best misunderstood. I didn't offer the apology / retraction when I saw otseng present it so as not to continue to drag the thread off topic.

With that, and with my previous words directed at East of Eden, I offer an apology, and a promise to try to remove those words from my vocabulary.

East of Eden, best I can tell, is a decent person who I happen to disagree with.

I'll try to get back to the hollerin' and carryin' on asap.

Very decent of you, and I'll try to not use the word 'lie' in the future. Both words in question are somewhat inflammatory personal digs that aren't helpful in a debate.

Let me sign in here too. I apologize also; I do tend to get a trifle uncivil from time to time, and I've got less right to do that than anyone here - we moderators are supposed to set good examples. "Bigot" was never appropriate, and I'm sorry.

Strong disagreement can lead to strong words. It's better if we all remember - hey, it's just an Internet debate. We aren't deciding national policy here; we're just arguing among ourselves. Keeping this community civil and friendly is more important than any single issue.

Be well, to both of you.

Well said, CNorman. That's the kind of attitude that makes this a great forum.