The ultimate odd couple David Boies and Theodore B. Olson have opened up their case against Proposition 8 in California to fight for the right of same-sex couples to marry. The opening arguments occurred this morning in the United States District Court in San Francisco. I will be discussing the case on the BBC tonight.
Proposition 8 passed with 52 percent of the vote to overturn the earlier decision of the state supreme court. The same court later upheld Proposition 8, here.
This is a case to watch closely and has the bona fides for possible cert. My greatest concern is the timing. This is not the Court that I would want to vote on this issue at this time. Once they decide, they are less likely to take another case any time soon. Moreover, in the current environment, any success before the Court would likely magnify the demands for a constitutional amendment. Nevertheless, it is one of the most important civil rights issues of our lifetime. Even though I have argued for dropping the word “marriage” entirely in favor of a uniform civil union standard, I wish them the best.
For the full story, click here.
Tom
“Just as conservatives used to promote “racial discriminations”, they now promote sexual orinetation/gender identity discriminations. From the point of view of our governments, both forms of discrimination are (or should be) equally irrelevant.”
I don’t know about conservatives and all that but didn’t Blacks help put prop 8 over the top?
In relation to your statement-at my last job I worked with a woman who passed herself off as a man( I don’t know the term). We were a small outfit and my boss advised us of the situation before she hired on officially. Being that it was Wyoming and not a common occurence there was some speculation about restroom accomodations(although we had a unisex restroom at the office). One day when we stopped for lunch she ducked in the women’s restroom saying something along the lines of I guess this one’s open.
If separate drinking fountains between “races” are discriminatory what about separate bathrooms between genders? Separate floors or dorms separated by gender at colleges that take federal funds?
I’m not just trying to be a contrary smart-ass here. I’m genuinely interested in the nuances of this. It reminds me of the guy who sued Hooters for not hiring him as a waitress.
As far as gay rights go why hasn’t President Obama gotten rid of don’t ask don’t tell? Why haven’t gays called him on supporting one man one woman marraige? Truman de-segragated the military in regards to race so why can’t Obama follow suit (although Eddie Izzard’s transvestite battallion seems like a win win)?
Gyges
“Finally, I hope you’ll allow me to quote the Supreme court at you, from Loving v. Virginia: [Sounds like a T-Shirt]
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival….”
I guess that’s why women are SOL lol.
It sounds a lot like that statement was made in relation to reproduction. In addition, it seems as if homosexuality has survived and flourished without “opposite-marraige” for all of history so what is the desired outcome?
Mike
If my cat gets called for jury duty I should be able to marry it while I’m at the courthouse-but seriously…
I guess a lot of marraige utility also had to do with the relative worth of labor between the sexes. How do you suppose dowreys will be handled when homosexuals from other countries come here to marry lol?
I’m thinking about starting a push for arranged divorces.
“Marriage for most of human history was a business deal that was sanctified by religious authorities, who were sometimes getting a cut of the deal.”
That doesn’t seem to bolster the pro-homosexual marraige case, anymore than child-bearing does the anti’s.
An additional quote from the Loving v. Virgina ruling seems to also be important:
“The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not to marry, a person of another race resides with the individual and cannot be infringed by the State.”
Just as conservatives used to promote “racial discriminations”, they now promote sexual orinetation/gender identity discriminations. From the point of view of our governments, both forms of discrimination are (or should be) equally irrelevant.
As for the second sentence above, it seems pretty easy to replace the words “person of another race” with “person of the same sex”.
On a different note, my favorite statistician, Nate Silver, has a nice, chortle-inducing post up:
http://www.fivethirtyeight.com/2010/01/divorce-rates-appear-higher-in-states.html
IANAL, but it sure seems clear to me that from a legal point of view, limiting “civil marriage” to “one man and one woman” after the Loving v. Virginia ruling is absurd. It seems so obvious that anti-gay laws are exactly the same as anti-miscegenation laws and fail on the same constitutional grounds. (It comes as news to a lot of folks, but no, states don’t get to do any damn thing they please, and no, the majority doesn’t always rule.)
(One interesting aside: Loving v. Virginia challenged Virginia’s “Racial Integrity Act of 1924.” Today we have the federal “Defense of Marriage Act.” While not exactly the same, they sure seem to have the same ring to them.)
Marriage is a religious sacrament. I don’t want the government telling the Catholic church who can or can’t receive communion or last rites. Our government shouldn’t be mixed up with religious sacraments.
While restricted marriage seems “obvious” to social/religious conservatives, this situation is a break in the “garden wall” that separates church from state. Those breaks work both ways – religion gets influence over government, but historically, religions pay a price to government with these arrangements. (It’s not going so well in Iran…) I wonder if there’s a chance that this issue could “sway” (or at least “nudge”) Roberts, Scalia and Thomas when they finally hear a case on this issue?
(And while we’re at it, I just can’t shake skepticism of Ted Olson’s angle in all of this.)
Pin,
What Gyges said and this. Two people of the same sex should have the same rights and privileges that a hetero couple have as a matter of fairness and law. Should people be able to marry animals or children I don’t think is a comparable comparison. However, should people be allowed to have plural marriages is a question I’m not ready to answer negatively, but there are many complex aspects to it that could need the State to make choices and so no easy answer is available. Many plural marriage systems in the past have really been situations of enforced patriarchy, for instance and that has more complex ramifications that the union of two people.
Now the aspect of marriage with respect to religion is an interesting question, since until about 150 years ago marriage worldwide was viewed as a financial transaction between families, or Country’s in some instances. The idea of a union of love was foreign. Both my sets of Grandparents were married due to arranged marriages per their religions. So when people today talk about marriage as a “sacred union,” historically they’re full of it. Marriage for most of human history was a business deal that was sanctified by religious authorities, who were sometimes getting a cut of the deal.
DOH! Religious institutions can marry or not marry whomever they damn well please. Nobody gives a rat’s ass, except maybe particular members of those religions. The question is whether the government can deny same sex couples access to CIVIL marriage. I don’t need the pope’s permission to go to city hall to get married, and it is not the government’s job to enforce religious doctrine or grant access to government services based on one religion or another. Furthermore, some religions do marry same sex couples (MCC, Unitarian and United, for example, at least in some places) so what about THEIR freedom of religion? Why don’t they count? It;s simple, religions get to decide for themselves and the govenrment provides equality to all people in providing services. This is hardly quantum physics.
Pin,
I know you were addressing Mike, but in cyberspace we all reserve the right to butt in to whatever conversation we want. Actually, weddings can be religious, the relationship between spouses can involve religion, but MARRIAGE as an institution is defined by the government. That’s why no matter how many church weddings you may have, you still need to get a marriage license from the state to be legally married.
Now if you want to play “I don’t think that person’s married in the eyes of God,” be my guest. Just don’t expect the IRS to come asking “do you think these people should be allowed to file as married?” For that matter, don’t expect a call from INS, insurance companies, estate courts, hospitals seeking next of kin, The VA administration, bankruptcy courts, or any of the other thousands of entities interested in if the couple is considered legally married. They’re going to go look at the law (that thing that the government, not religion, is in charge of making and enforcing).
Finally, I hope you’ll allow me to quote the Supreme court at you, from Loving v. Virginia:
“Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival…. “
Pardon me for intruding here, Mike, I’m sure you can set me straight as it were.
“As long as homosexual people are denied the same rights as other citizens…”
I, a man, am only allowed to marry women at the present time (in series and not in parallel I might add). A gay man has that same right. For the most part in this country I’m not allowed to marry another man (even if it makes an amusing premise for an Adam Sandler/Kevin James buddy movie). That looks like the same rights to me.
Personally I think “marraige” is a religious institution and religions should be able to preside over them in whatever way they see fit. Also, each state should be able to decide how they want to recognize unions(Utah may be interested in reparations).
If marraige is a right as you seem to be saying, what limitations may the government place on this right?
rcampbell,
A number of states have allowed “Same Sex” couples to adopt. Then the ultra conservatives such as Betsy DeVos imposes her will to what is the definition of the candidate for her choice. ie, ultra right wing christian conservative. Then she fully funds her candidate somewhat like Emily’s list. Mostly reserved for Michigan.
But then on the other side is the heirs to a pharmaceutical company has put there own mark in funding democratic candidates. Nationwide as best as I can tell. The best that I can say is that they gave over 15 million. Betsy is a lot cheaper.
Then there is the attach on Public Education and all of the Charter/Magnet Schools. Billions are paid out to the corporate types.
The conservative attack is on every front. The question is now who is the Ring Master? The devils work must continue but without direction who will be in control?
AY
That brings up a couple of points which may or may not make it into the court room. I’m not expecting you to respond directly, your post simply brought up the thoughts.
The primary argument put forth publically by the proponents of Prop 8 cites the compelling interest of the government to stabilize marriage as a place for child bearing (more on this later). However, everyong knows their objection derives from writings in religious books of one or more faiths. Doesn’t that argument put theose books above the US Constitution and therefore render the argument useless? I guess Olsen will have to get the Prop 8 lawyers to admit that, though, right?
In his opening comments Prop 8 sponsors’ Atty. Charles Cooper refered to marriages of opposite partners as part of “naturally procreative relationships” that governments have an interest in fostering to promote stable families”.
How does this square with my brother’s circumstance in that he is physically unable to father children. He and his wife have been happily married for over 25 years. If marriage is for childrearing, should they have been prevented from marrying? This would be similar to an infertile woman marrying for love or money, but not for raising a family. What of my married brother-in-law who, in an act of defiance toward his abusive father, decided to not have children in order to end the family line.
In many states same-sex couples can adopt and raise children just as hetero couples. Let’s see, married–check; children–check, opposite sexes—oops, that trumps the other two. WTF!!!
The incidents and high levels of the afflictions of igorance and intolerance among religious people is mindboggling.
Considering the widespread ignorance unleashed in this country, anti-
evolutionary theory anyone, we must still hope that sanity will prevail over religious hatred and fear-mongering. As long as homosexual people are denied the same rights as other citizens this country has no claim to justice, or equal protection under the law. In the spirit of JFK in Berlin so long ago: I am a homosexual. If we cannot proclaim our solidarity with our gay brothers and sisters and overcome this travesty, who will next come into the gunsights of the
fundamentalist horde of ignorance?
I guess some would see it either way as doing God’s work. See Genesis Chapter 1 verse 4. Do you think it could really be any other way?
This is about as strong a legal team as the case could get. I share the cncerns about going to the SCOTUS, though. The case seems pretty clear that equal means equal. Any court denying this further would obviously be guilty of judicial activism, no?
I hope this goes through– I’m just not holding my breath. As a homosexual, I get an unending number of sideways glances when out with my partner. Especially dissapointing is how many come from black people. I have had a homosexual friends in NY and Chicago beaten up by black males shouting taunts of Faggot and pretty boy. My gay high school teacher was killed by two black males he was trying to help by offereing them rides to jobs. People just aren’t smart enough to see the irony I’m afraid.
Lotta,
I agree with yours and Prof. Turley’s concern that this Supreme Court just may not listen to reason on this subject, but with the immense talent on the side of the gay couple trying to get married, I think they have a good shot of succeeding.
The Professor’s concern is appropriate IMO no matter what the District Court rules. If this case ends up before SCOTUS I have no faith that justice will be served. This is exactly the kind of civil issue that wouldn’t need to be resolved in the courts if our (US) House and Senate would do their job. It’s an issue that is long overdue for national action and I wish the plaintiffs well.
I was looking forward to watching this trial, it was going to be broadcast on YouTube before the SCOTUS intervened.
http://rawstory.com/2010/01/supreme-court-shield-gay-rights-foes/
“The US Supreme Court has blocked efforts to have a historic gay-marriage trial broadcast in real time on YouTube. …
US District Court Judge Vaughn Walker last week allowed the proceedings in a case that opens today to be videotaped, at the urging of opponents of Proposition 8, California’s constitutional amendment banning gay marriage. Gay-rights advocates argued that having the case open to the public was important because of the intense interest in the case nationwide. But lawyers for Proposition 8’s defenders argued that having the case broadcast would cause harm to their clients by potentially exposing them to public anger.”
Best of luck! May justice prevail.
Good on you Mr. Boies and Mr. Olson.