Bush v. Gore lawyers take on gay marriage ban

[Pint0 Xtreme]

Hmm... an interesting development.

Bush v. Gore lawyers take on gay marriage ban

By Steve Gorman

LOS ANGELES, May 27 (Reuters) - Two lawyers who squared off in the legal battle over the 2000 U.S. presidential election teamed up on Wednesday to challenge California's gay marriage ban in a move that if successful would allow same-sex couples to wed anywhere in the United States.

The lawsuit, filed on behalf of two same-sex California couples barred from marrying under the voter-approved measure, Proposition 8, puts them at odds with gay rights advocates who see a federal court challenge as risky.

Gay rights advocates, fearing a loss in the socially conservative-leaning U.S. Supreme Court, have avoided going to federal court after losses at state ballot boxes and in state courtrooms.

The California's supreme court on Tuesday upheld Prop 8, which defines marriage exclusively as between a man and a woman, as a valid amendment to the state's constitution.

The same court last May struck down a state law prohibiting same-sex marriage, opening the way for an estimated 18,000 gay and lesbian couples to wed before Prop 8 was approved by voters in November, reimposing the gay marriage ban.

Ted Olson and David Boies, who opposed each other in the Bush v. Gore Supreme Court case, said that gays and lesbians who cannot marry were made into second-class citizens by California's voter-approved ban, known as Proposition 8, in violation of the U.S. Constitution.

"This case is about equal rights guaranteed every American under the United States Constitution," former U.S. Solicitor General Olson told a news conference in Los Angeles.

"For too long, gay men and lesbians who seek stable, committed, loving relationships within the institution of marriage have been denied that fundamental right that the rest of us freely enjoy."

RISKY BUSINESS

If the case prevails, it would establish the right of gay couples to marry as the law of the land. The vast majority of U.S. states specifically prohibit same-sex marriage, despite recent victories by gay advocates in Iowa and some Northeastern states.

The lawsuit itself was brought last Friday in advance of the state's high court ruling. On Wednesday, the lawyers filed a request for a federal court order to lift the ban, and allow same-sex marriages to continue, until the case is resolved.

Andrew Pugno, one of the lawyers who successfully defended Prop 8 in state court, said the will of the voters was under attack, and that he would defend it again. "This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding," he said.

Olson was joined by Boies, who opposed him in the U.S. Supreme Court case that decided the outcome of the disputed 2000 presidential election between then-Texas Governor George W. Bush and then-Vice President Al Gore. The high court ultimately ruled in favor of Bush, whom Olson represented.

Although political conservatives and liberals have split sharply over the issue of gay marriage, with conservatives tending to oppose same-sex marriage and liberals more likely to support it, the lawyers cast the debate in nonpartisan terms.

"We come from different parts of the political spectrum. But I think think Republicans and Democrats, conservatives and liberals, all recognize the importance of equal rights guaranteed by the Constitution," Boies said. "This is a civil rights issue. A big one."

But gay rights activists are wary.

"A federal lawsuit at this time is terribly risky," said Jenny Pizer, one of the lawyers for Lambda Legal Marriage Project who argued against Prop 8 before the California court.

Her organization, the American Civil Liberties Union and others said in a statement, "without more groundwork, the U.S. Supreme Court likely is not yet ready to rule that same-sex couples cannot be barred from marriage."

Olson and Boies disagreed, arguing that the federal courts were ready to affirm marriage rights on the basis of sexual orientation.

"We think we know what we're doing," Olson said. "We've studied the Constitution. We've studied the United States Supreme Court. There are a number of very, very important decisions by the United States Supreme Court on which this case is and will be predicated."

One he cited was a 1967 Supreme Court decision in that struck down a Virginia statute prohibiting couples of different races from being married.

By contrast, Boies said, the California high court's ruling was very narrow, holding only that Prop 8 was a valid amendment to the state's constitution under state law. The question of whether Prop 8 was constitutional under federal law was left undecided, he said.

(Additional reporting by Peter Henderson from San Francisco; Editing by Sandra Maler)

I certainly hope they know what they're doing.

[Edi]

David Boies is competent. I know him best from the 1990s Microsoft antitrust trials where he was the lead prosecutor and he has a pretty impressive track record. Hopefully he and Olson succeed.

[Kamakazie Sith]

I'm so sick of hearing the will of the voters nonsense. Would it be OK to own slaves if it were the will of the voters? No. That's because it's an equal rights issue and this is why we have a supreme court so the majority can't oppress the minority. It seems like I never see any competent debating in government from the pro homosexual side, or really for that matter on any side that I consider to be reasonable.

[Thanas]

Boies is one of the best lawyers in the USA. Quite remarkable - he memorizes every detail of a trial as he has dyslexia and therefore cannot read or write during it. The man is truly phenomenal and a joy to watch in the courtroom.

[The Duchess of Zeon]

I hate these stupid, irresponsible fuckers. They're just going to bring another attempt at a Federal Marriage Amendment down on our heads and the only thing keeping that happening will be party discipline when a bunch of blue-dog democrats would probably happily kick us under the bus to get reelected. And I wouldn't rule out the Supreme Court as it currently stands with 5 and soon to be 6 Catholics on it finding some interpretation of the constitution that bans gay marriage entirely. Jesus, we had momentum, and then whenever we get momentum, some retarded group of fuckheads pushes wildly ahead of the gains we can seize, hold, and consolidate, like so many French knights gleefully charging headlong into suicide-by-longbow at Agincout.

[Darth Wong]

That "will of the voters" nonsense comes from the conceit that democracy is an intrinsic moral good, rather than one of many competing factors in a balanced government. The entire concept of a system of laws is to reduce the power of public opinion. Otherwise we might as well throw out the courts and go with mob rule.

The average person should only be allowed to vote on general statements of legal principle, rather than specific issues. We have seen time and time again that the average person is more than capable of supporting a general statement of principle while rejecting the ramifications of that principle. I've lost count of the number of people who say that they oppose discrimination against homosexuals but they also oppose legalizing gay marriage. The average person is too stupid to recognize his own contradictions, because he does not think logically. He does not start from principle and then deduce conclusion; he instead starts from conclusion and then looks for appropriate supporting principles, whatever they may be. Popular opinion when it suits him, legalistic mumbo jumbo when it doesn't, religious tripe when he can't think of anything else, appeals to tradition, whatever.

No matter what conclusion you want, there's always a principle which supports it. That's why people like this are always able to construct an argument. You never see them at a loss for words; it's just that those words do not come from any kind of coherent value system. It shifts and changes depending on what they want to justify today.

[Pint0 Xtreme]

I hate these stupid, irresponsible fuckers. They're just going to bring another attempt at a Federal Marriage Amendment down on our heads and the only thing keeping that happening will be party discipline when a bunch of blue-dog democrats would probably happily kick us under the bus to get reelected. And I wouldn't rule out the Supreme Court as it currently stands with 5 and soon to be 6 Catholics on it finding some interpretation of the constitution that bans gay marriage entirely. Jesus, we had momentum, and then whenever we get momentum, some retarded group of fuckheads pushes wildly ahead of the gains we can seize, hold, and consolidate, like so many French knights gleefully charging headlong into suicide-by-longbow at Agincout.

The greatest support the Federal Marriage Amendment got was in late 2003/2004 and it didn't even come close to passing. Even with the blue-dog democrats in the party, I don't think we're anywhere close to the 2/3rds majority in both the house and senate to consider making it a reality. I'm far more concerned about rulings against us in the high court.

[Isolder74]

I'm so sick of hearing the will of the voters nonsense. Would it be OK to own slaves if it were the will of the voters? No. That's because it's an equal rights issue and this is why we have a supreme court so the majority can't oppress the minority. It seems like I never see any competent debating in government from the pro homosexual side, or really for that matter on any side that I consider to be reasonable.

It's too bad that the south loving Supreme Court upheld slavery back then isn't it? Have you forgotten Plessy v. Ferguson? The Supreme Court is hardly a perfect protection against tyranny. It is only as good as the judges making it up.

The system was and never will be perfect.

[Kamakazie Sith]

I'm so sick of hearing the will of the voters nonsense. Would it be OK to own slaves if it were the will of the voters? No. That's because it's an equal rights issue and this is why we have a supreme court so the majority can't oppress the minority. It seems like I never see any competent debating in government from the pro homosexual side, or really for that matter on any side that I consider to be reasonable.

It's too bad that the south loving Supreme Court upheld slavery back then isn't it? Have you forgotten Plessy v. Ferguson? The Supreme Court is hardly a perfect protection against tyranny. It is only as good as the judges making it up.

The system was and never will be perfect.

They didn't uphold slavery in Plessy v. Ferguson. They upheld racial segregation, unless you're referring to a different SCOTUS ruling in which slavery was upheld.

Also, not once did I ever state that the Supreme Court was perfect nor did I state that Supreme Court always makes the right decision. What I did state was that the Supreme Court making decisions like this is magnitudes better than the general public because the general public tends to be uneducated idiots where at least with the Supreme Court they have an education.

[Isolder74]

They didn't uphold slavery in Plessy v. Ferguson. They upheld racial segregation, unless you're referring to a different SCOTUS ruling in which slavery was upheld.

Also, not once did I ever state that the Supreme Court was perfect nor did I state that Supreme Court always makes the right decision. What I did state was that the Supreme Court making decisions like this is magnitudes better than the general public because the general public tends to be uneducated idiots where at least with the Supreme Court they have an education.

There was more then one. Dread Scott case for one. I didn't name any of the slavery ones. I didn't think I had to. I mentioned two examples of bad Supreme Court rulings.

[Kamakazie Sith]

They didn't uphold slavery in Plessy v. Ferguson. They upheld racial segregation, unless you're referring to a different SCOTUS ruling in which slavery was upheld.

Also, not once did I ever state that the Supreme Court was perfect nor did I state that Supreme Court always makes the right decision. What I did state was that the Supreme Court making decisions like this is magnitudes better than the general public because the general public tends to be uneducated idiots where at least with the Supreme Court they have an education.

There was more then one. Dread Scott case for one. I didn't name any of the slavery ones. I didn't think I had to. I mentioned two examples of bad Supreme Court rulings.

Generally, when you state that the Supreme Court unheld X and then reference a court case it makes sense to reference a court case where they upheld X instead of Y. Anyway, it doesn't matter because your entire post wasn't really necessary. It didn't address anything I stated.

[Isolder74]

Generally, when you state that the Supreme Court unheld X and then reference a court case it makes sense to reference a court case where they upheld X instead of Y. Anyway, it doesn't matter because your entire post wasn't really necessary. It didn't address anything I stated.

I sure did. To the following.

I'm so sick of hearing the will of the voters nonsense. Would it be OK to own slaves if it were the will of the voters? No. That's because it's an equal rights issue and this is why we have a supreme court so the majority can't oppress the minority. It seems like I never see any competent debating in government from the pro homosexual side, or really for that matter on any side that I consider to be reasonable.

My point is you can't assume that the Court will make a fair ruling. That is why they are concerned about the idea of it going that far. They aren't sure that the Court will side with their point of view. Actually both sides seem afraid of that actually.

[Kamakazie Sith]

My point is you can't assume that the Court will make a fair ruling. That is why they are concerned about the idea of it going that far. They aren't sure that the Court will side with their point of view. Actually both sides seem afraid of that actually.

I never made that assumption though. I stated the reason why we have a supreme court is so the general public can't oppress a minority group. Even if the Supreme Court makes a poor ruling it's still not the general public deciding, and that is what my post is about. Also, I have a lot more confidence in the Supreme Court making a fair ruling vs. the general public.

Basically, Isolder. When it comes down to it would you rather have the people deciding of a minority group has equal rights knowing that the people are generally uneducated idiots or would you rather have people who have a degree? No, it's not a perfect system. It's about reducing the risk, and having the supreme court make those decisions reduces that risk.

[Isolder74]

My point is you can't assume that the Court will make a fair ruling. That is why they are concerned about the idea of it going that far. They aren't sure that the Court will side with their point of view. Actually both sides seem afraid of that actually.

I never made that assumption though. I stated the reason why we have a supreme court is so the general public can't oppress a minority group. Even if the Supreme Court makes a poor ruling it's still not the general public deciding, and that is what my post is about. Also, I have a lot more confidence in the Supreme Court making a fair ruling vs. the general public.

Basically, Isolder. When it comes down to it would you rather have the people deciding of a minority group has equal rights knowing that the people are generally uneducated idiots or would you rather have people who have a degree? No, it's not a perfect system. It's about reducing the risk, and having the supreme court make those decisions reduces that risk.

As long as the executive is willing to uphold it. May I remind you of the actions of a President Andrew Jackson when the Supreme Court ruled that relocating the Cherokee was Unconstitutional?

I would rather have the court making that ruling but you have to consider that is a lot of power for a small group of men and women. If they are the wrong kind of people it can actually be worse then majority rule sometimes as their views can hold sway much longer. This is due to their long stay in office. The views of the court take a long time to change.

Then we'd need a President willing to enforce the ruling. Not that I worry about that right now.

[General Zod]

Wouldn't they have better success challenging it on the full faith & credit clause, if that's even possible? We've got enough states that allow for gay marriage that other states should be legally obliged to recognize such marriages.

[Darth Wong]

I'm far more concerned about rulings against us in the high court.

Judges like to make the least sweeping ruling they possibly can, ie- the one that will lead to the fewest ramifications and be the least useful as a precedent in future. Even if the Supremes did rule against gay marriage, I have trouble believing that they would do so in such a manner that sweeping statements are made repudiating gay rights and the possibility of legalizing gay marriage in future. And even on the off-chance that they did, I don't see why it couldn't simply be overturned in future.

In short, I don't see the benefit of waiting. If they want the political climate to change, that would make a Supreme Court ruling irrelevant since they could simply pass it by ballot. If they want the Supreme Court makeup to change, they're going to have to wait a looooong time. And if it does change dramatically, they could simply overturn the previous ruling; it's not like it hasn't happened before. There have been some truly despicable rulings on the Supreme Court in the past which were overturned by subsequent Supreme Courts.

[CmdrWilkens]

Wouldn't they have better success challenging it on the full faith & credit clause, if that's even possible? We've got enough states that allow for gay marriage that other states should be legally obliged to recognize such marriages.

No because the rest of the full faith and credit clause states that:

AFull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.[/b]

The emphasis is mine but the critical point is that Congress has already, by the passage of DOMA amongst other points, rather clearly indicated that this paticular category of marraiges does not need to be applied evenly. (Obviously that's the simplified version of why full faith and credit is iffy).

Now going after it as a equal protection clause under Article IV Section 2 and the 14th Amendment is much easier simply because you have an entire class of citizens who do not, based on their orientation, enjoy equal protection of the laws nor are they currently able to receive all of the privledges and immunities of all other citizens. The California Court in both the In Re Marriage Cases decision and in this one (along with the other cases from MA and IA) make a very clear point as to HOW this is an equal protection violation.

What I'm worried about is the SCOTUS basically finding enough weasel room to decide that civil unions are sufficient.

[Edi]

The Iowa Supreme Court certainly didn't mince words in its ruling and had no problem making a sweeping scope that would well serve as nationwide precedent. You could adopt that almost as is and then throw in the full faith and credit clause and the other things here. Ioaw and California have different state constitutions, but most US state constitutions are similar enough that a state Supreme Court decision from one state can well be used as basis and precedent in another state if the laws are similar enough. And since all states at least theoretically must have constitutions that don't clash with the federal one, it would be a powerful argument in the SCOTUS as well.

[Pint0 Xtreme]

Well, another upside to this is it will force NOM and other anti-gay organizations to divert funds and attention to another lengthy and expensive case. From what I understand, these cases usually take awhile to get to the Supreme Court. The situation in the country may change for the better by the time it gets there.

[Surlethe]

the importance of equal rights guaranteed by the Constitution

Since when has the Constitution guaranteed equal rights? Reading through it, it seems like the closest you get is the 14th amendment:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

[General Zod]

the importance of equal rights guaranteed by the Constitution

Since when has the Constitution guaranteed equal rights? Reading through it, it seems like the closest you get is the 14th amendment:

I'd presume that fell under the section about not denying anyone under its jurisdiction equal protection of the laws. Especially given the 14th was used to help get the separate but equal segregation laws struck down.

[SAMAS]

the importance of equal rights guaranteed by the Constitution

Since when has the Constitution guaranteed equal rights? Reading through it, it seems like the closest you get is the 14th amendment:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

\

It seems that would be sufficient.

[The Yosemite Bear]

well if it wasn't for the fact that the federal courts seem to be still stocked with Bush appointees after the great purge, one might simply quote loving vs. virgina and be done with it.

[General Zod]

well if it wasn't for the fact that the federal courts seem to be still stocked with Bush appointees after the great purge, one might simply quote loving vs. virgina and be done with it.

Locked down? Only two of the current justices are Bush the Dumber appointees. Two were appointed by Reagan, two by Clinton, two by Bush Sr. and one by Ford.

[Pint0 Xtreme]

well if it wasn't for the fact that the federal courts seem to be still stocked with Bush appointees after the great purge, one might simply quote loving vs. virgina and be done with it.

Locked down? Only two of the current justices are Bush the Dumber appointees. Two were appointed by Reagan, two by Clinton, two by Bush Sr. and one by Ford.

I think he was referring to the other federal courts, which I believe were all shifted to the right by Bush appointees.