the Odd Couple: Olson and Boies

I received this warm and fuzzzy e-mail about gay marriage coming to DC. I'm happy about the outcome. My problem is that the "aw shucks" POV is unlikely to convince anyone who is not already inclined to agree with the position.

What I believe will be more compelling is for people to watch the broadcast and/or read the transcript of Bill Moyers Journal for February 26, 2010. The legal adversaries in 2000's Bush v. Gore Supreme Court case — Theodore Olson and David Boies, "one conservative and one liberal — have teamed up to make the constitutional case for same-sex marriage." And the point that is made repeatedly is that their support is based on the rule of law.

The two lawyers are mounting "a well-financed legal challenge to Proposition 8, California's 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come."

"The case they've brought, Perry et al v. Schwarzenegger et al, has created a major stir, with some advocates of same-sex marriage worried that they are bringing the case too soon, that a loss at the Supreme Court could set back the movement for same-sex marriage by years. Olson argues that waiting for civil rights is not an option:

In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts. Secondly, when people said, 'Maybe you should be waiting. Maybe you should wait until there's more popular support.' Our answer to that was, 'Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their Constitutional rights in California?'

Earlier, to this basic point:
TED OLSON:... People told Martin Luther King, "Don't do it. The people aren't ready." And Martin Luther King responded, "I can't wait. I'm not going to make people wait." And when people told Martin Luther King, "You may lose." He said, "The battles for civil rights are won ultimately by people fighting for civil rights."

And one more thing. When the Supreme Court had made the decision in Loving versus Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it's only what? 40 years later? 40 years later we think that's inconceivable that Virginia or some other state could prohibit interracial marriage. It's inconceivable. Public sometimes follows the opinions of the Supreme Court, reads the opinion and says, "My gosh, thank goodness for the Supreme Court. We realize how wrong that was."

(I've written about Loving vs. Virginia, which I too find analogous to the gay marriage issue.)

Perhaps it is my liberal bias, but I found the statements of the conservative Olson the most compelling:

TED OLSON: 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 who will be -- should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.

At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn't create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.

Or this exchange:

BILL MOYERS: So, you're both comfortable invalidating seven million votes in California [who voted for Prop 8]?

TED OLSON: Well, this happens when the voters decide to violate someone's constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don't need protection from the courts.

I was particularly fond of this:

BILL MOYERS: But you're going up not only against the voters of California, the majority, but you're going up against the Congress of the United States. In the 1990s, Congress passed the Defense of Marriage Act, which actually defined marriage as quote, "a legal union between one man and one woman." And even declared that states need not recognize the marriages, the same sex marriages of another state. The President signed this. President Bill Clinton signed this. And you want to overturn not only the voters of California, but the Congress and the President of the United States.
...

TED OLSON:...it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, "What happened there?" And they'll say, "Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us."

One of the fascinating aspects of the trial, which began in January, is that one could not watch the proceedings, unless one were in the federal courthouse in San Francisco. "(T)wo filmmakers in Los Angeles came up with an ingenious alternative. Using the trial transcripts and other reporting, plus a cast of professional actors, they turned the case into a TV courtroom drama. Every day of the proceedings has been reenacted on their website, Marriagetrial.com.

So watch/read this piece. You may be convinced, despite your conservative leanings, theological objections, or other issues that, as a matter of long-standing American law and jurisprudence, marriage is a fundamental right, and therefore must include gay marriage as well.
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