This week on the JOURNAL, Bill Moyers spoke with prominent lawyers Ted Olson and David Boies about their legal challenge to California’s ban on same-sex marriages. Olson, a conservative, and Boies, a liberal, are best known for facing off before the Supreme Court in Bush v. Gore following the disputed 2000 election. Now, they’ve joined forces to argue that gay and lesbian couples should have the right to marry.
Though a decision of the California Supreme Court legalized same-sex marriage in the state for several months in 2008, voters’ passage of the ballot initiative Proposition 8 that November – by a margin of 52.3 % to 47.7 % – amended the state constitution to declare that “only marriage between a man and a woman is valid or recognized in California.”
Proponents of gay marriage have been divided over how to respond to Proposition 8. Some have advocated challenging the ban in federal court as a violation of the Constitution's guarantee of equal protection under the law, as Olson and Boies are attempting, but others fear an unfavorable legal precedent if the opposition wins. Instead, they have suggested running ballot initiatives in hope of repealing Proposition 8 by the democratic process and avoiding the risk of losing in federal court.
Ted Olson explained why he took on the case despite many other conservatives’ view that it would be judicial activism for a federal court to strike down the California law:
“It’s unfortunate that people think of this as something that is a political issue or a conservative or liberal issue. It is a matter of human rights and human decency and liberty. Many conservatives are libertarians, and they think that the government should allow people to live their lives the same way that other people live their lives under the Constitution, and be treated equally without the government deciding who they can live with or who they can be married to... We’re not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court’s recognized that over and over again. We’re talking about whether two individuals should be treated equally, under the equal protection clause of the Constitution... It isn’t judicial activism for the Supreme Court to recognize an associational right, a liberty right, and a privacy right for two people who love each other to be married.”
David Boies explained why he wants the federal courts to strike down legislation that California citizens democratically enacted via ballot initiative:
“If you didn’t tell the majority of voters they were wrong sometimes under the Constitution, you wouldn’t need a Constitution. The whole point of the Bill of Rights and the 14th Amendment is to say ‘This is democracy, but it’s also democracy in which we protect minority rights.’ The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it’s 52 percent or 62 percent or 72 percent or 82 percent of the people... There are certain rights there are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for... Nobody’s asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court... What the Constitution says is that every citizen gets equal protection of the laws. It doesn’t just say heterosexuals.”
In a statement prepared in the run-up to the 2008 vote, supporters of Proposition 8 argued against judicial determination of what constitutes marriage and said the legislation was not about attacking gays and lesbians or denying anyone rights:
“Proposition 8 is about traditional marriage; it is not an attack on gay relationships. Under California law gay and lesbian domestic partnerships are treated equally; they already have the same rights as married couples. Proposition 8 does not change that. What Proposition 8 does is restore the meaning of marriage to what human history has understood it to be and over 61% of California voters approved just a few years ago... It overturns the flawed legal reasoning of four judges in San Francisco who wrongly disregarded the people's vote, and ensures that gay marriage can be legalized only through a vote of the people... Prop. 8 will NOT take away any other rights or benefits of gay couples. Gays and lesbians have the right to live the lifestyle they choose, but they do not have the right to redefine marriage for everyone else. Proposition 8 respects the rights of gays while still reaffirming traditional marriage.”
There are at least 2 flaws in the debate FOR Prop 8:
- If our Federal Constitution was the ONLY document needed to protect Gay Rights, or any human rights for that matter, we don't need the Amendments for anti-segregation, nor women's rights.
It is a fundamental precept that (to put is very simply) "if it ain't written, it ain't so." To get legal protections for specific Human Rights in the legal context, it must be written so the right cannot be questioned. We had segregation because the rights of blacks were NOT specifically written in the US Constitution, so States exercised free interpretation of black rights. - Prop 8 DOES impact Gay Rights because it takes away the state rights and privileges automatically afforded "traditional married" couples. It is NOT just a matter of semantics if some other form of the institution (like "Civil Unions") is NOT specifically stated.
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