Skip to comments.Why Are Attorneys Ted Olson And David Boies Wrong In Bringing Prop 8 To Federal Court?
Posted on 06/03/2009 12:10:01 AM PDT by stevelackner
Attorneys Ted Olson and David Boies, who faced off in Bush V. Gore, have declared they are working together to do what they can to bring Prop 8 before a federal court claiming it violates the U.S. Constitution. Please watch the following interview with Chris Matthews to fully understand their contentions and my responses in this article: http://www.youtube.com/watch?v=YUlDZLZ1Gls&feature=player_embedded
These two lawyers are claiming that Prop 8 violates fundamental rights protected by the U.S. Constitution and amounts to discrimination in violation of the Equal Protection Clause. The analogies made by these attorneys are perverse. They equate gay marriage with interracial marriage. First, there are differences between men and women, while there are no differences between people of different races. That is why everyone intuitively understands there is nothing wrong with having a Boy Scouts and a Girl Scouts, but there would be something very wrong with having a White Scouts and a Black Scouts. Second, those that opposed interracial marriage were advocating something against all Judeo-Christian and secular norms. Both biblical and secular morals saw nothing wrong in members of different races intermarrying (although members of different religions was certainly a different story). In contrast, no religious or secular system of morality has ever advocated gay marriage. Third, and many would not agree with some of the finer elements of this point, but being black or white is not by definition characterized by the type of relationships one ends up having later in life. You are born with whatever skin color and are a member of whatever race regardless of whether you ever even have a partner. One's race is in no way associated with any specific behavior or desires. Sexual orientation and race are not in and of themselves equivalent. Limiting marriage to those of the same race is therefore not the same as expanding and changing the fundamental meaning of the institution to encompass homosexuality. Fourth, there are inherent differences between straight couples and gay couples, while there are no differences between interracial couples and same-race couples. Straight couples can biologically have children, and having a mother and a father is the most natural and healthy experience for a child. If the law wishes to protect this cornerstone of civilization and promote the creation of the next generation in a certain manner that is most healthy for that next generation, that is certainly the prerogative of the law.
The two attorneys continously compare the civil rights movement to the gay marriage movement, thereby trivializing what was a real and harsh history of discrimination against African-Americans. It is nothing short of disgusting for Ted Olson and David Boies to claim they are fighting for "civil rights" and to compare their cause to the noble movement that fought for an end to segregation. Homosexuals are not blacks in the Jim Crow South. The laws of this land apply equally to gays, they did not apply equally to blacks. There are no signs saying "No Gays Allowed." In fact, in California, gays have all the same rights and benefits if they enter into a domestic partnership. To make these comparisons belittles the history of segregation and racism.
Ted Olson claims that preserving the definition of the word "marriage" would be tantamount to claiming that the word "citizen" could never apply to any immigrant who becomes an American. That is so stupid it does not even deserve a response. Even though the distinction should be very clear, I will spell it out for you. If someone from Japan did all that was necessary to become an American, for the government to then say that individual could not be called a "citizen" because he is Japanese would be changing the definition of "citizen," not preserving it. It would be an example of a gross redefinition of what has traditionally been considered "citizenship" under American law. How that example demonstrates that those that want to change the definition of marriage to mean something it never has under American law should have the ability to do so as per the U.S. Constitution completely eludes me.
These examples are simply outlandish and asinine. The federal Constitution in no way demands that marriage be defined as encompassing same-sex couples. Two hundred years of American jurisprudence and thousands of years of Judeo-Christian civilization have defined marriage as between those of the opposite sex. It is based on an assumption about what marriage is that predates the law itself. To claim the Constitution undoes that reality and demands the traditional definition of marriage become a thing of the past is ridiculous on its face. To make that claim one must twist that document to mean whatever one wants it to mean, cheapening it to the point where it has no real meaning or value.
Marriage is a matter of civil law, but it is not a civil right. The issue is whether the basic assumptions, that in fact predated the law, about what constitutes marriage should be upheld. It is about whether the law is right or wrong and what the law ought to be. If violating equal protection meant not accommodating those who wanted to alter the understood meaning of the institution then anyone could make these ridiculous claims. Caretakers could claim to be married if they so wished. Business partners could claim to be married if it helped the business. A person should legally be able to have multiple spouses. Anyone could claim to be married to anyone, since apparently violating an individual's idea of what marriage ought to be is considered legal discrimination and a violation of some fundamental right. The truth is that marriage has a specific definition. The law, based on the underlying assumptions of the definition of marriage, treats all citizens to whom it applies fairly. Blacks get married. Whites get married. Jews get married. Immigrants get married. Asians and Latinos get married. Believe it or not, gays can get married too, so long as they marry the opposite sex. But saying that because marriage doesn't include same-sex couples it is therefore a violation of equal protection is absurd. If one wants to argue that marriage should have a completely new meaning, then a new law is necessary to bring that about. It would require statute to redefine what marriage itself means.
Anything Boies gets into turns out to be much ado about nothing. With enemies like that who needs friends? :-)
Why are they together? The last time I heard about them one was practicing true law and the other wasn’t.
And that's the key to this case that the author overlooks. If domestic partnership's are indistinguishable from marriage, then one can easily make a case of separate but equal, and that is exactly what Olsen and Boies are going to do when they argue in front of the Supreme Court. Anyone who was against same sex marriage, but supported domestic partnerships, simply wasn't thinking, because the Gay community has known (nay, planned) for a long time that once that was established, they could parlay it into the Supreme Court at the right time, and with the right people.
Don't anyone delude themselves into thinking that Olsen and Boies doesn't stand a good shot at wining this.
For instance, states determine unique ages for when people are old enough to marry. States also determine residency lengths of time prior to marriage, and states determine divorce settlements.
If marriage was federal, then the federal government would be setting uniform standards for all of the above, meaning that the age of consent would no longer differ between states, for example.
Yet the federal government does not set the age of consent for marriage...so the federal government does not see marriage as a federal right or privilege.
Thus, Boies and Olson are, respectfully, wrong.
Marriage is a state matter, not a federal one.
The domestic partnership thingy has definitely melted the public mind meld about marriage. With the current Supreme Court makeup this would lose 5-4 (I can’t see even Kennedy giving this much sympathy), but all we need is to lose a conservative justice before we lose Obama and game over.
Doesn't = don't
They could easily win...but they would win only due to a biased judge who wasn't following the law...which is pretty common in federal court.
The "rule of law" has long since been replaced with the whims of judges, sadly.
See my post above about why the law says that they are wrong.
It gets messier when the Federal government recognizes these things called “marriage.” The IRS will not bless a live-in relationship as a marriage if a state does not. (And how do people in D.C. get married, anyhow? Do they have to look to Maryland or Virginia law?)
I agree on both. If they do lose it will probably be a 5-4 vote, and then, just as you said, lose a conservative and....
Aye, just as it gets messy when the federal government recognizes any religious ceremony (e.g. baptism). It was always a mistake for the federal government to get involved in marriage, certainly the 1st Amendment prohibits it outright.
He knows that the SCOTUS will probably rule against the suit. Such a ruling will set into Federal stone the principle that gays do not have Federal right to marry. It will take gay activists decades shake off such a decision.
Olson is the rabbit telling the fox to please not throw him into the brier patch.
The concept has been long secularized. Of all the things atheists complain about, I’ve never heard any gripes that they needed churches to tie the knot. But again, this was back when being married made a huge difference in what a pair was legally allowed to do. Now the only thing (off the top of my head) is income tax treatment.
It's still an intrusion into religion. Cities and states once banned trade on Sundays, too.
The trend is for less state involvement in religion, not more.
Even a supposedly non-religious society doesn’t mean a non-moral one. In a lot of places it’s much easier to buy a beer than a car on Sunday.
It’s about a word, and the constitution recognizes that words have meanings, hence why there’s so much protection in the constitution for the spoken and written word.
While I’m sure that some view it as punishing gays, or putting them in their place, it has to do with the people’s choice in not letting a word like marriage get mangled by others.
The amendment’s simple: it puts in a dictionary definition that has been around for many years. Marriage is a union of a man and a woman. Nothing in there that prevents civil unions, that prevents gays from shacking up together. There’s nothing that prevents laws being passed to give same sex partners the rights to inherit or to make medical decisions. All it does is define what marriage is, because apparently the legislature, governor and the courts all forgot it.
Now homosexuals will say I’m being homophobic, that I want to take away their basic human rights. Nope, just want to preserve the meaning of the word used to signify my marriage to my wife. It is a mistake to take this to federal court - there’s so much interest in prop 8, that it’ll get an expedited schedule.
But the proposition is air tight - it is just a clarification of the definition of one word. And if defining what one word means is declared to be unconstitutional, then what in the constitution means anything anymore? Might as well shred the whole document as every word in there is up for a new definition each day of the week.
The only part of the state court’s decision that I disagree on is the presupposition that gay unions that took place before the proposition was voted on shall still be called marriages. Nope, sorry, we defined that word clearly - it’s the union of a man and a woman. It’s a gay union, period.
I've heard many gays equate their struggle to the black civil rights movement and it's obscene; a history of slavery and oppression versus having to hide an enjoyment for anal sex and preference for the same sex. You can't hide being black but you can refrain from announcing a love of sodomy. They love to point out MLK's tacit support of Bayard Rustin, a gay civil rights activist, and Coretta Scott King's comments in the 1990's. Problem is that MLK never made any public comments about homosexuality either way and there is no evidence that he said anything in support in private.
The height of their hypocrisy is claiming that there was a Gay Holocaust. There wasn't. Estimates range from 5,000 to 15,000 of gays killed during the Holocaust, many of whom were political prisoners. Compare that to the millions of Jews and Poles who died and the comparison gets more obscene. Not to mention the fact that many Nazis were homosexual and fetish fashion grew from Nazi garb.
This whole thing is a fraud perpetuated by narcissists who can't tolerate anyone's opinion but their own and who at all cost demand total acceptance of their lifestyle and predilections like petulant children who throw tantrums when they don't get their way. They program younger generations, personally attack all dissent, distort the truth, avoid voter referendums and attempt to overturn voter will all the way to the Supreme Court while flooding the media with their shrill dysfunction. Bois and Olsen are just part of the sideshow of freaks.
They are wrong because they are treating marriage as a federal right
I'm not a constitutional scholar or a lawyer, but I think you're wrong here. I don't think they're arguing that at all.
If they win this case, my impression is that they will achieve a great tactical victory in that it will remove from their opponent the ability to negotiate, and that's all domestic partnerships are, is a negotiating tool. They'll be more than halfway to their goal by achieving that.
Actually, the political correctness Nazis of the scumbag Democrat party would find plenty wrong with a "White Scouts", but a "Black Scouts" would be just as fine with them as, say, a Black Student Union at college.
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