Federal Lawsuit Filed Against Prop 8//


Bush vs. Gore attorneys join forces against Prop 8.

Lawyers David Boies and Theodore B. Olson were on the opposite sides of a case that determined a presidency. Now they’ve joined forces to fight against traditional marriage in federal court and are representing two same-sex couples.

Boies, who represented Al Gore in the 2000 Florida vote-recount case, has teamed up with Olson, who represented the ultimately victorious George W. Bush.

In addition to his efforts for Gore, Boies is best known for representing the U.S. government in the late 1990s in its anti-trust case against Microsoft.Olson was the U.S. solicitor general under President George W. Bush, serving from June 2001 to July 2004.

They’ve filed a lawsuit in federal court challenging Proposition 8, California’s ban on gay marriage.

In addition to asking that Proposition 8 be declared unconstitutional, the lawyers are also seeking an injunction against the enforcement of the ban.

“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said in announcing thesuit.

The lawyers argue, among other things, that Proposition 8 denies the couple the right to marry and violates the equal-protection clause of the 14th Amendment.

The amendment’s Equal Protection Clause requires states to provide equal protection under the law to all people within their jurisdictions.

Chairm, one of The Opine Editorials’ brilliant bloggers, summed up David and Ted’s arguments from the news conference in which they announced their partnership in the fight for SSM in federal court.

These two lawyers who hope to take their case to the US Supreme Court
appeared on Hardball the other day. They want to use the CA marriage
amendment as the excuse to impose SSM across the country.

Below is a rough transcript. Note that their arguments have not
evolved one iota
since the pro-SSM side went to court in Hawaii back
in 1993. Here are some quick points they voiced.

1. It is said that the man-woman basis of marriage law discriminates
“purely” on sexual orientation. A new term is coined: “same-sex

2. It is said that marriage is the right of an individual to marry the
person of choice.

3. Marrige is called a fundamental human right — not merely a
constitutional right — and that race and sexual orientation are
closely analogous.

4. The claim is that the marriage amendment is just about the word;
but the complaint they make goes much farther than that.

5. The complaint refers to an individual’s equality, but here the
lawyers talk of equating different types of relationships.

6. A new attempt at analogy is made: citizens who pass the citizenship
test being denied the use of the word citizen.

7. The complaint is  the man-woman basis of marriage exists because
“same-sex indivduals” are unpopular and because the majority doesn’t
like what “same-sex indivduals” do in their relationships. They did
not once refer to sexual behavior.

8. They point to the example of Brown v. Board of Education — (an
activist decision that was poorly reasoned even if it came to a just
conclusion) and linked it to the Civil Rights Act which they said
would never have happened if not for the Supreme Court’s leadership.

Watch the 5 minute video and try not to yell at your monitor. They
can’t hear you. They can’t hear common sense either.


You can see these attorneys on MSNBC’s Hardball at the link {here}

Source: news.muckety.com

2 thoughts on “Federal Lawsuit Filed Against Prop 8//

  1. Are these tantrums going to occur in each and every State every time they’re told “NO”? I seriously hope they do, because the general public is not impressed with their beligerent B.S. and is growing very weary. They are not gaining any fans and are probably losing a few along the way.

  2. Hi Journalista,

    The summary I put together was of a joint interview that Boise and Olson had with Christopher Mathews on MSNBC — Hardball.

    Here is a rought transcript of that video clip:

    * * *

    Olson: Equal Protection clause and the Due Process clause of the 14th Amendment to argue that individuals are entitled to marry the person of their choice. The Due Process clause and the Equal Protection clause precludes states from prohibiting same-sex individuals from having the same right to marry as other individuals.

    Christ Mathews: Are you saying that a person has the right to life, liberty, and property and states can’t deny it; and part of liberty is to pair-off with whoever we want to pair-off with, basically, to mate with for life?

    Boise: Yes, absolutely. Forty-two years ago the Supreme Court decided that marriage was a fundamental right of liberty. That the ability, the right to choose the person you want to marry and to be able to marry the person that you love was a fundamental human right that could not be abridged by the state in a discriminatory manner. The fundamental issue here, in this case, is — is it discriminatory to say that gays and lesbians, purely because of their sexual orientation, are unable to get married? We think it is. We think that is the central issue of the case. We think it violates the federal constitution for California to prohibit gays and lesbians from marriage.

    Olson: We are talking about equality of individuals and denying them that right to marry and there isn’t a rational basis for California or any other state to take individuals and say “They are unpopular. We don’t like the things that they do in their relationships” (hich the Supreme Court, in that Texas case (i.e. Lawrence), held to be constitutionally protected), but because we don’t like those things we are going to deny them the right to marriage. This is not a liberal-conservative Republican-Democrat issue. This is a matter of equality and treating people with dignity and allow people that stable relationship that marriage produces.

    Boise: Historically there has been all sorts of discrimination. Women couldn’t own property and couldn’t vote. African Americans couldn’t vote and couldn’t own property and were slaves. It took until 1967 for the United States Supreme Court to rule that it was unconstitutional for states to prohibit blacks and whites from marrying each other. The fact that something had been done in the past doesn’t make it right. I think one of the things that has happened in our society is that we’ve always believed in equal rights but we’ve sometimes been blinded about who is really entitled to that kind of equality. I think we recognize today that everybody is entitled to that kind of equality. When we look at somebody’s sex, or somebody’s race, or somebody’s religion, or we look at somebody’s sexual orientation, and say “They’re a little less human than we are; they’re really not entitled to equal rights,” that that’s just wrong. I think the Supreme Court made that clear in the context of marriage as well as other fundamental rights.

    Christ Mathews: Can the word marriage be protected under the basis of the meaning of the word?

    Olson: That is essentially what California does. They have something called Domestic Partnership which provides many of the same rights as marriage. What if we were to tell individuals, after coming to this country and taking the citizenship test and becoming citizens, what if we told them, “You’re from Japan and you can vote and you can do all the other things that individuals can do who call themselves citizens but we are not going to allow you to use the word citizen because you came from another country. Because you are Japanese or Mexican or something like that.” That would be discrimination on an unacceptable basis. That’s what we have here. We are saying that, “We don’t mind if you live together; we don’t mind if you have the other relationships that exist in marriage, we just don’t want you, because of your sexual orientation, to use that word marriage.” We think that’s unconstitutional. I can’t say it better than David did.

    Boise: Remember that in California today there are more than 18,000 gay and lesbian couples who are married and are using the term marriage. The California Supreme Court says that’s fine. There are lots of states, an increasing number of states, in which gays and lesbians can marry. So marriage is not just limited to people of different sex.

    Christ Mathews: [How does that compare with the example of the court’s influence on the public controversey in Roe v Wade?]

    Olson: In 1967 it was accepted that states could prohibit interracial marriage. That didn’t stop the Supreme Court from rendering the decision that said that was unconstitutional. And people now think that would be crazy to say that we couldn’t allow people of different races to marry. We would be saying to someone who has a constitutional right to marry, “Wait a few years until 50 states approve that. Go stand in the back of the line and wait until the political process goes through its forms and people vote to give you your constitutional rights.” You don’t take your constitutional rights to the ballot box. They are protected by the Constitution. That is why we have a constitution and that is why we have courts.

    Boise: Remember also that we wouldn’t have had the Civil Rights Act without Brown vs. Board of Education. The Supreme Court had to step in and start that process. After that process was started we had important legislative accomplishments. But the Supreme Court has been in the forefront of establishing fundamental rights for a long time.

    * * *

    I think they have made it pretty clear that these two litigators will depend not on the Constitution but on abuse of judicial review.

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