The U.S. Supreme Court and the Right to Marry
Published July 20, 2009 @ 06:26AM PT
Today's Wall Street Journal has a great op-ed from lawyer David Boies, one of the lawyers behind the federal lawsuit challenging California's ban on same-sex marriage (known in many circles simply by the infamous Proposition 8). It is well worth the read, as you'll see from some snippets below.
In filing the federal case, Boies teamed up with Ted Olson, a former Solicitor General and the man who represented George W. Bush in the 2000 Supreme Court case Bush v. Gore. Boies, for his part in all of this history, represented Al Gore in that case, making this a true odd couple in teaming up to litigate the right to same-sex marriage.
But having these two guys, both from opposites ends of the political spectrum, shows that same-sex marriage is not a conservative vs. liberal issue. And that's a point that David Boies stresses very strongly in his op-ed today in the WSJ. Check it out:
Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.
And just what might the U.S. Constitution have to say about the right to marry? Boies explains how the Supreme Court has interpreted marriage laws in the past. If the U.S. Supreme Court follows its precedent, then it should just be a matter of time before marriage equality is back on the books in California, if not throughout the entire country. Here's Boies again:
The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it....
Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.
Wow, that's good stuff. Boies also points out that the Supreme Court has overturned anti-marriage laws in the past, like the kind that existed in Missouri that prevented felons from marrying, or the kind that existed in Wisconsin that prevented child support scofflaws from marrying. Boies rightly says that those like the National Organization for Marriage or Kenneth Starr or others who argue on behalf of ballot initiatives like Proposition 8 really have no legal analysis behind their argument, other than the religious belief that marriage should be between a man and a woman. But as Boies concludes, that's not an adequate enough legal argument:
The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.
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Comments (14)
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Kudos to Boies for his eloquent editorial in the WSJ. Obama should read it and come to his senses, abandon his equal-but separate policy of federal civil unions. The more I hear from Boies and co the more I'm convinced that this case has a good chance with the Supreme Court.
Posted by Tim Kopp on 07/20/2009 @ 09:15AM PT
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"and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens."
I can't even express how gratified I am to see this statement. I have long been disgusted (as a religious social conservative) to see my faith used as a political weapon. I live my faith (as best I can), I share my faith, but I wish to keep my faith seperate from the power of the state.
This issue has been unfairly used to seek to take advantage of many Americans religious and emotional feelings in order to gain power and money. The flames of fear and hatred have been fanned.The idea that one may somehow be displeasing to God if they fail to try and enforce their religion via politics is preached vigorously. It has been used to divide people and gain votes for the right wing.
The "right wing" was never a religious movement, but many politicians and religious leaders were able to promote that idea for their own gain. Too many Americans were distracted from the true differences between the various political and economic schools of thought and were persuaded to vote with the idea that somehow they were defending their faith and way of life.
I ask any religious conservatives to truly ask themselves why they need the validation of their beliefs from a secular state? My beliefs will not change just because the law does. The states definition of marriage is a secular one, not a religious one and my beliefs about my own marriage will not change. Ask this question of yourselves, is fighting for this in the political arena actually serving God's will, or that of men?
Let this not be an issue that continues to divide and distract us under the guise of defending faith. Just look at the series of moral scandals that have plagued the right wing and from within different religious organizations to see that the "moral majority" movement is not particularly moral. Please understand that I am not saying that any party or group is somehow morally superior. Be careful of men who hold themselves out to be so.
Posted by William Brown on 07/20/2009 @ 10:41AM PT
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Well said. The problem I see with religious people who hold themselves as moral authorities over LGBT is not just a lack of reason, logic, understanding, compassion and intellectual integrity, but a severe arrogant grip on almost every type of fallacy listed.
http://www.nizkor.org/features/fallacies/
When asked people to back up their vehement hate with what they think are facts they refer to more fallacies in the process. Whether those fallacies be belief, tradition, straw-man, ad homonym, slippery slope, middle ground or authoritative, anyone who can point out their fallacies as they are presented is usually met with an insult or a threat. If we ask genuine solid questions but the answers we receive are not answers but threatening, insulting or dissuading responses then we should ask ourselves this important question:
"What is so fragile that it cant hold up to sustained scrutiny and needs threats to protect it?" -TheraminTrees
Science on the other hand looks at the facts and draws conclusions from them, where the religious mind makes up conclusions and tries to find facts that support their conclusions. This ability to find supportive facts for conclusions that dont align with reality is not difficult but actually very simple. The challenge is finding the sources of those facts and seeing if they are bias or not. Science has no place for bias studies and any study that tries to pass it self off as an ultimate conclusion and is not supported by a major scientific organization should be considered bias or just false. One can simply go to www.NARTH.com read their studies then compare them to real psychologist at.
http://www.apa.org/topics/sorientation.html
and
http://psychology.ucdavis.edu/rainbow/html/facts_mental_health.html
After doing so it wont be hard to conclude which side is bias and which side not. Also if you pry further into NARTHs website you can find many links and quotes to and from religious groups that openly speak out against the integration and normalization of gay people and their families.
This leads me to another point about religion: one can be a religious person but if one decides to impose their views onto others, others have a right to question the soundness of such arguments that person makes and receive nonthreatening non-dissuasive answers. If the person cannot give such answers then we must ask "What is the validity of this persons bias against group X, and will reaction Y really happen if we side with group X. It could simply just be a personal bias this person created, out of indoctrination of stereotypes and common practice of others who are against group X.
For example: lets bring up a simple situation. Jimmy is a good christian boy raised by what society would call good christian parents. Jimmy's mother told him ever since he was a little boy that gay men are all effeminate and women like. That they cross dress and are anti-god and anti-christian. This creates a stereotype in Jimmy's mind about all gay people. This is called an authoritative fallacy and because of our genetics we are all very susceptible to this type of fallacy.
Now although what Jimmy was told isnt reality it dictates to him his mental reality. Now lets say Jimmy watches the news and it covers a pride parade but the camera people only cover the cross dressers in the crowed or those that carry signs that condemn religious belief. This physical experience now reinforces into Jimmy that all gay people are this way. This is called stereotype filtering. Now only effeminate gay men who have severe distaste for religion can get through that stereotype filter.
When a masculine gay male by the name of Brock sits down with Jimmy in church. Jimmy wont even recognize this person is gay because he doesn't fit the perceived stereotypes of what he was told. This is denial. But what if Brock comes out and openly says he is gay and a christian. Now Jimmy is left with rationalizing the situation to the best of his abilities. This can go in two direction. It either destroys the stereotypes or rearranges his prejudices. In reality the latter happens in most situation. Jimmy then twist reality to conform to the stereotypes he was taught about gay men; which would be that either Brock is not gay, or he is pretending to be masculine and christian because no gay male is either. This is called distortion and it is what happens often when fundamentalist are met with the reality and dichotomy of gay people. This happens all to often when gay families come out in the open to support themselves in their fight for equal rights.
We as Human beings need to look past what tradition. scripture, and authoraties dictates to us, and be open to question everything that has been taught to us. As they say: "Healthy scepticism of religion is deadly to religion. Whereas healthy scepticism of science is what science loves." If something feels that its beliefs are above being questioned, but provides no answers to its reasons, what does that say about the veracity of such beliefs?
Posted by Chris Marshall on 07/20/2009 @ 05:12PM PT
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In fact one can read this little peice about how homosexuality is an illness and can be cured then follow below the passage
http://www.tldm.org/News11/GroundbreakingStudyShowsGaysCanChange.htm
Here is one thing they state.
"AN ABOMINATION
"Man shall not condone evil or rationalize sin. Homosexuality is an abomination in the eyes of God and man! The Creator condemns those who do not repent of this sin." Our Lady, August 5, 1977"
One can clearly see that if this wasn't a bias piece of scientific literature then why are there extremely bias anti-gay quotes at the end of it? Science does not make claims like this and when people post work that has this type of bias it is clear it is far from scientific and even farther from reality.
Posted by Chris Marshall on 07/20/2009 @ 05:28PM PT
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There is faith (real faith not just a belief system) and then there is what you describe above. I have to admit that what you describe is much more common.
These issues that you raise don't just apply to religious belief, but can be witnessed in nationalism, protectionism, patriotism and any other sundry philosophies and beliefs. It seems to be a human weakness that is all too common.
I believe that at its root lie fear and greed. Greed, as I use it, is any imbalanced or unhealthy desire for gain whether this be a desire for material gain, for prestige, for power, favor (divine or human) etc...
False leaders (sincere and cynical) dangle a fulfillment of desires (eternal rewards or the American Dream etc) or a fear of loss or suffering (eternal damnation etc)by creating enemies that we feel threatened by. This isn't just external from outside influence, but it is also something that we do to ourselves as well as we each wrestle with our own fears and desires.
Posted by William Brown on 07/20/2009 @ 06:42PM PT
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"This isn't just external from outside influence, but it is also something that we do to ourselves as well as we each wrestle with our own fears and desires."
Exactly, thanks for tacking ont those points.
If you have read my story of my journey throughout the ex-gay group then it becomes easier to see how and why people can hate themselves to such a point that they either commit suicide or try fruitlessly to change their beings to something they are not. All out of fear for something that isn't real but simply an aberration used for moral policing.
Posted by Chris Marshall on 07/20/2009 @ 07:38PM PT
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sorry i meant apparition.
Posted by Chris Marshall on 07/20/2009 @ 07:40PM PT
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Sorry I meant "Apparition"
Posted by Chris Marshall on 07/20/2009 @ 08:17PM PT
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Chris, I'm happy to report that not all religions agree on homosexuality.
My church, for instance, has been willing to withstand all kinds of threats and brickbats to defend our belief that the Episcopal Church welcomes absolutely everybody. It is in keeping with our "three-legged stool" of scripture, tradition and reason.
Those who point to the story of Sodom and Gomorrah as support for their bigotry fail to understand what the sin of the inhabitants of those cities actually was: a lack of hospitality. Jesus underscores this very point when he compares them to those who would refuse hospitality to his disciples.
And those who point to Levitical law crack me up. They are generally the same people who villify those they call "religious cherry-pickers" but what are they themselves doing but cherry-picking Levitical law? Why don't they work as hard to outlaw, say lobster?
That'd go over real well here in Maine ...
Anyway, my point is that many people of faith see absolutely no conflict between same-sex marriage and "opposite marriage" as Miss CA called it.
Posted by Jenifer Lewis on 07/21/2009 @ 08:47AM PT
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Same-sex marriage is a necessary right for which the LGBT community to hold. It's great that David Boies and Ted Olsen will be at the U.S. Supreme Court in support of same-sex marriage. Though Proposition 8 stood, that intolerant state amendment must be repealed. Because the U.S. Supreme Court in the past has said that marriage is fundamental for happiness, then the U.S. Supreme Court must declare Proposition 8 unconstitutional.
Posted by Edwin Bonilla on 07/20/2009 @ 11:52AM PT
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The word "marriage" is a legal term that can never be equaled by "domestic partner" or other terms that result in segregation. No church holds the trademark on the word marriage nor should they dictate who is allowed to marry and who should not. The United States government must realize that ALL citizens deserve equal rights including those who seek same-sex marriage.
Posted by Michael Raney on 07/20/2009 @ 12:06PM PT
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Mr. boies makes an eloquint and truth filled argument as to why the courts should be in favor of equality...An argument that I wholeheartedly agree with...However, I have to wonder what the reasoning of the california supreme court was when they decided in favor of proposition hate and whether or not that "reasoning" might not be an important factor to take into account in regards to the united states supreme court...
Posted by Thomas McHugh on 07/20/2009 @ 01:14PM PT
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Excellent. This is how social change should be pursued. Not through domestic terrorism. Not by passing discriminatory 'hate' crimes laws under the guise of stopping discrimination. But by directly embracing the existing laws that are so often neglected - like Constitutional law.
This is some of the forward thinking 'change' this country despirately needs.
Posted by Fred Frankenberg on 07/21/2009 @ 10:43AM PT
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"Law is about justice, not bumper stickers"....
That says it all.
The right to marry has been deemed by the US Supreme Court to be a "fundamental" right in the pantheon of rights recognized by the Court (see Zablocki v. Redhail, 434 U.S. 374 (1978), Loving v. Virginia, 388 U.S. 1 (1967)). Furthermore, the US Supreme Court declared, 13 years ago, that anti-gay bigotry has no place in American society (Romer v. Evans, 517 U.S. 620 (1996)). Just six years ago, the US Supreme Court struck down all state "sodomy" statutes that prohibited gay persons from having consensual sex, even in private settings.
The crucial question is this: Will the US Supreme Court follow its own precedent in terms of adjudicating a same-sex marriage case? Will the Court apply logic and reason, based on prior decisions, to this issue; or will the Court give in to the prevailing societal bias such as that which operated in Maine yesterday?
There are some Justices who have to be written off at the outset. Justices Scalia and Thomas are notorious for their homophobia (Scalia's dissent in Romer was utterly disgusting; had he substituted the word "Jew" for the word "homosexual", his writings would have been directly comparable to the writings of Joseph Goebbels, or the rantings of Hitler himself).
Justices Roberts and Alito are conservatives -- but how have they ever voted with respect to gay issues? To the best of my knowledge, neither Justice has ever decided such a case...
Justices Ginsburg, Breyer, and Stevens are good, liberal Justices who will probably vote in favour of gay marriage.
Justice Sotomayor is known for the liberal decisions she handed down as a judge on the US Court of Appeals for the Second Circuit. She is an extremely intelligent woman who takes great pains to be briefed on all cases that she hears.
So we are down to Justice Kennedy. Kennedy's history is very interesting -- as a judge on the US Court of Appeals, he ruled against a gay plaintiff in a challenge to the military ban on gay persons. However, he authored both of the gay-related US Supreme Court decisions handed down since he was appointed to the high court bench, and his decisions were written in unusually strong language, stressing the principles of justice that were so crucial to the resolution of those cases (Lawrence and Romer, supra); in both cases, he sided with the gay community, making it absolutely clear that laws that discriminated against gay Americans violated the core principles of the US Constitution (see Romer, supra) and that laws that prohibited gay persons from having sex violated the due process right to privacy (see Lawrence, supra).
We may, therefore, have the necessary five votes required to resolve a gay marriage case in our favour -- but we should be very, very careful before bringing such a case before the high court at this time...
PHILIP CHANDLER
Posted by Philip Chandler on 11/04/2009 @ 03:58AM PT
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