Why Are Attorneys Ted Olson And David Boies Wrong In Bringing Prop 8 To Federal Court?

http://www.stevelackner.com/ ^ | June 3, 2004 | Steven W. Lackner

[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.

[Rightwing Conspiratr1]

How long before polygamy is legalized?

[csense]

How long before polygamy is legalized?

Once they figure out that the quantitative is inferred by the qualitative, if they haven't already. The first step though, is to reassign the qualitative premise, and that's nearing completion.

[Sir Francis Dashwood]

They are wrong because they are treating marriage as a federal right, even though marriage has always been a state-controlled privilege.

Correct.

Reynolds v. United States, 1878.

[Gemsbok]

Brer Rabbit & Brer Fox

[Tenniel2]

Recall the last time someone ducked the right decision, hoping that SCOTUS would do the job for him.

(Hints: "W," "McCain-Feingold.")

[DH]

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.

Now I am really confused.  How come there is something wrong with having a Miss white America but nothing wrong with having a Miss black America?

 

[DrC]

“They are wrong because they are treating marriage as a federal right, even though marriage has always been a state-controlled privilege.”

I think you’ve misinterpreted their position. They are arguing that the same Constitutional privacy right that the Supreme Court has earlier found to govern the freedom to choose a marital partner of a different race is applicable to gays as well.

“The Constitution does not specifically mention a right to privacy. However, Supreme Court decisions over the years have established that the right to privacy is a basic human right, and as such is protected by virtue of the 9th Amendment. The right to privacy has come to the public’s attention via several controversial Supreme Court rulings, including several dealing with contraception (the Griswold and Eisenstadt cases), interracial marriage (the Loving case), and abortion (the well-known Roe v Wade case). In addition, it is said that a right to privacy is inherent in many of the amendments in the Bill of Rights, such as the 3rd, the 4th’s search and seizure limits, and the 5th’s self-incrimination limit.” http://www.usconstitution.net/constnot.html#privacy

While the Bill of Rights (first 10 amendments) originally applied only to Federal government, the Supreme Court has gradually extended these rights to also apply to the states. Thus, any right to privacy found in the first 10 amendments would limit state action as well as federal action. This is the underpinning for their claim that states are not permitted to erect barriers to gay marriage.