An Olson/Boies one-two punch for marriage equality

By Creature

They make it seem easy.

Olson:"This is what judges are expected to do. It's not judicial activism. It's judicial responsibility in the classic sense."



Boies: "We put fear and prejudice on trial, and fear and prejudice lost."

Truth in Comics

By Creature


If it's Sunday, it's Truth in Comics.

Grasping at strawmen

By Mustang Bobby

Following up on Michael's post below...

As the Prop 8 trial begins today, Edwin Meese III, who was an Attorney General in the Reagan administration, leaps to the end of the story and assumes that the plaintiffs have several unfair advantages and therefore will prevail. He bases his presumption of verdict on several factors:

- The trial is taking place in San Francisco. "More than 75 percent of San Francisco voters opposed Proposition 8. That’s quite a home-court advantage for same-sex marriage advocates." Well, unless the trial is taking place in the middle of Castro Street, I would hope that the court will be able to maintain an air of impartiality, and one would hope that the outcome would be the same if it took place in Fresno.

- The judge has issued a series of pre-trial rulings that Mr. Meese thinks stacks the deck against the defendants. "The judge went so far as to order the Proposition 8 campaign to disclose private internal communications about messages that were considered for public use but never actually used. He has even ordered the campaign to turn over copies of all internal records and e-mail messages relating to campaign strategy.

"Most troubling, Judge Walker has also ruled that the trial will investigate the Proposition 8 sponsors’ personal beliefs regarding marriage and sexuality. No doubt, the plaintiffs will aggressively exploit this opportunity to assert that the sponsors exhibited bigotry toward homosexuals, or that religious views motivated the adoption of Proposition 8. They’ll argue that prohibiting gay marriage is akin to racial discrimination." If that was the basis of the campaign for the sponsors of Prop 8, then their motives are relevant to the case. After all, it's hard to make the case for depriving an entire class of people a right without bringing up something other than equal protection under the law, and the plaintiffs have the right to explore them.

- The judge will let the proceedings be shown on YouTube. "This will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment and bullying attacks already used by some of those who oppose the proposition." Assuming that some people will do bad things because of what they see on TV would carry a little more weight if just such an argument wasn't usually dismissed by conservatives when a right-wing nut shoots up a church based on what he saw on TV as just fingerpointing.

Mr. Meese then goes on to state that the supporters of Prop 8 "will work hard to demonstrate that it was rational for voters to conclude that marriage is a unique institution that promotes the interests of child-rearing, and that those interests are broader than the personal special interests of the adults involved. And they’ll make the case that voters were very much within their rights, when casting their ballots, to consider their own moral and religious views about marriage — or any other subject." I find it interesting that a conservative who presumably believes in smaller and limited government would come to the defense of a government-sanctioned institution such as marriage over the rights of individuals. That sort of turns conservative orthodoxy on its head. But it must also be remembered that conservatives turn to that argument when an institution they believe in is in the dock; after all, they made the same case for maintaining segregation in the military and in the public schools, and no doubt it was also argued thus in opposition to the case of Loving v. Virginia that ultimately banned interracial marriage. Fortunately, the Constitution speaks only of the rights of the citizens, not religious traditions or morality.

Mr. Meese concludes,

It remains to be seen whether traditional marriage, and the rights of the voters who approved Proposition 8, will prevail in Judge Walker’s courtroom. Most likely, no matter how the judge rules, the Perry case is destined for appeals and a final decision in the United States Supreme Court. But it is during the present trial that the facts in the case will be determined, and it is there that the two sides should be able to present their cases on a level playing field.

First, the rights of the voters are not on trial here: they got their chance to vote on the issue. We have a long tradition, however, of the courts overturning the votes of the people based on the fact that sometimes they vote for things that go counter to the intention, if not the letter, of the federal law. I assume Mr. Meese is in favor of the federal Justice Department rulings that have held that medical marijuana or assisted suicide laws -- approved by voters in several states -- are illegal.

Second, Mr. Meese does not define what "traditional marriage" is, but I presume he's referring to the relatively new concept that a man and a woman are the only parties to a marriage and they get married for the sake of love alone and to have children. That's not how it's defined in the Bible or in some of the traditions in other countries and faiths, but we'll give him that for the sake of argument.

Finally, if any group has the deck stacked against them, it is the plaintiffs. Prop 8 won in November 2008. Not only did it win, but the California Supreme Court, the court that initially ruled in favor of same-sex marriage in the state in May 2008, upheld the election results in favor of Prop 8 last year. There is a vocal and well-financed lobby of religious and conservative groups who are vehemently opposed to granting equal rights to all people on this issue, and they have made their case quite clearly. However, the fact remains that they won based on fear, bigotry, and religious intolerance and have yet to put forth a reasonable case as to why providing an entire group of citizens with the same rights as everyone else either harms the rest of the citizens or deprives them of their rights. If they can do that, then we'll have a level playing field.

(Cross-posted from Bark Bark Woof Woof.)

Making a federal case out of it

By Mustang Bobby

Two unlikely allies -- Theodore Olson and David Boies, who last faced off over Bush v. Gore in 2000 -- are working together to take California's Prop 8 to federal court.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court. While neither man claimed any special connection to the gay community — they are working “partially pro-bono,” Mr. Olson said — both said they had been touched by the stories of the same-sex couples unable to marry in California.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.

“I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.

While I appreciate the sentiment and I am grateful to have such high-powered voices raised in support of marriage equality, I can't help but wonder a couple of things. It's not as if this is the first time someone has suggested going through the federal courts to challenge the host of federal rules and laws -- including the Defense of Marriage Act (DOMA) -- that have been enacted over the years. But a lot of the gay-rights groups have learned something from watching what happens when laws governing such things as civil rights or abortion rights have been dealt with through the federal courts rather than at the local or legislative level. It hands the opponents of such rights the cudgel of "outside agitators" or "activist judges" which makes for screaming headlines and talk-radio resentment against the all-powerful federal government riding roughshod over states' rights, and in some cases it would tear up years of grassroots efforts by people who have been working to craft local acceptance or overturn state laws.

Such a suit also runs the risk of being lost. Popular opinion may be shifting towards acceptance of marriage equality, and several states such as Maine and Vermont have passed laws to make same-sex marriage legal, but in front of a still-conservative Supreme Court, the outcome could be different. Mr. Olson, however, seems to think that the Court could be persuaded.

Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”

That may be, but two things come to mind. First, the example of Roe v. Wade shows that just because the Supreme Court ruled in 1973 that a woman's right to choose was in the Constitution, the ruling obviously did not end the debate or the lawsuits. Neither, for that matter, did Brown v. Board of Education end school segregation in 1954. An argument could be made that the Supreme Court in both cases actually set back the causes they were supposed to help by fueling resentment against the federal government and its sledgehammer approach. The same thing could happen with marriage equality. Second, and this is showing a bit of tin-foil-hat paranoia, it occurs to me that the motive behind this suit could be to force the issue into the docket of the Supreme Court with the hope that it will lose, thereby setting back gay rights. I hasten to add that I am not accusing either Mr. Olson or Mr. Boies of conspiring to destroy the case for marriage equality by feigning to help it, but I can't help but wonder where they were when Prop 8 was on the ballot a year ago.

The lesson of Roe v. Wade is that sometimes it's better to work to win your case on a person-to-person, state-by-state level rather than get a sweeping pronouncement on a federal level. If there are federal laws that need to be repealed such as the Defense of Marriage Act or enacted such as the Employment Non-Discrimination Act (ENDA), then let us work to do so through the legislative process. If the states can provide for marriage equality, then let's work at that level rather than a cookie-cutter/one-size-fits-all approach, and not provide the anti-gay forces with the ammunition to battle against judicial rulings (and with irony working on all cylinders, go to court) and claim that "the people" had no say in the matter. It may take a little longer and be harder to achieve than hoping for a 5-4 ruling from the Supremes, but no one can say that the fight isn't worth it.

(Cross-posted from Bark Bark Woof Woof.)

Prop 8 goes back to court

By Mustang Bobby.

The Supreme Court of California is bracing for arguments today about the passage of Prop 8 last November and the future of the same-sex marriages that were legally performed during the time between the court ruled in favor of them and the passage of the constitutional amendment.

A year after the state Supreme Court entertained arguments on extending marriage to gay couples, many of the same lawyers will be back before the same justices this week arguing why California's voter-appproved ban on same-sex marriage should stand or fall.

The passage of Proposition 8 last November changed the state constitution to prohibit gay marriage and trumped the high court's decision as few months earlier to legalize it. But the ballot measure was appealed and the justices on Thursday are getting the final word on whether marriage is an institution that must accommodate two women or two men.

The debate will be framed by not only the gay and lesbian couples who see their struggle as the modern equivalent of prohibitions on interracial marriage, but the 7 million citizens who rejected that comparison in an $83 million election.

The stakes are high - for the 18,000 couples who married while same-sex weddings were legal, for gay marriage opponents who object on religious grounds and for others who are deeply divided on the issue. And whatever the court decides is likely to have ramifications not only for millions of Californians but also for other states grappling over gay marriage.

Amendment 2 here in Florida, passed at the same time and having the same intent of depriving gays and lesbians the equal right to marry as straight couples, is in no danger since there is no clause in the Florida referendum laws that provide for the caveat of disallowing an amendment that substantially revises the state Constitution itself, such as they have in California. But, as the article says, it will be important to see how this court rules because it provokes a dilemma for the defenders of the status quo: if same-sex marriage is such a threat to the fabric of our society that they claim it is, how can they then argue that Prop 8 does not substantially revise the California state constitution? You can't have it both ways. Either depriving an entire class of people of the right of equal protection under the law is a substantial revision, or it's not. Unless, of course, you believe that gay and lesbian citizens aren't worthy of equal protection in the first place. If that's the case, we have a whole new ball game.

The court will also decide whether or not the same-sex marriages performed when they were legal are still valid. I'm not a lawyer, but I think the concept of applying a law retroactively is contrary both to the letter and the spirit of our laws and Constitution. If the marriages were once legal and performed legally with all the proper forms filled out, the state shouldn't be able to declare them invalid. It would be like passing an assault weapons ban and then trying to enforce it by going house to house and seizing any weapons that were purchased before the ban took effect. Let's see how long the NRA and the gun-owners would stand for that.

I'll leave it to the legal observers and experts to predict what will happen in the California Supreme Court. My own take is that the fight for Prop 8 and Amendment 2 should have been fought and won before the ballots were cast. While I understand and feel the same outrage and disappointment that the people of California and Florida would vote for inequality in this day and age, some of us -- myself included -- took it for granted that bigotry and religious dogma wouldn't hold sway. I hope the next time we won't be so cavalier. My biggest disappointment, however, is that there will be a lot more "next times."

(Cross-posted from Bark Bark Woof Woof.)

Prop 8: The Musical

By LindaBeth

From Funny or Die, and needs no comment:

See more Jack Black videos at Funny or Die

See my previous post critiquing the idea that marriage has been one way "since the dawn of time."

(Cross-posted to Smart Like Me.)