David Boies: "Discrimination Can't Survive in the Marketplace of Ideas"

On Thursday at the Commonwealth Club here in San Francisco, attorney David Boies, one of the head litigators in the landmark Perry v. Schwarzenegger case, reflected on Judge Vaughn Walker's decision to overturn California's Proposition 8. Mr. Boies argues that opponents of gay marriage rely on slogans, rather than facts, concluding "when you're up on the witness stand, eventually there's no place to hide, and when you can't hide, discrimination falls." 

Mr. Boies noted that "discrimination can survive in the darkness, it can survive unchallenged but it can't survive in the marketplace of ideas." He then added that it was "a great day for all Americans" because any discrimination diminishes all of us.

At times emotional, he said that the country was founded on "a culture of equality" and though imperfect at that start over the long sweep of the nation's history we have expanded the scope of that equality. It is only in the area of gay and lesbians rights that the state still stands in to deny an entire class of people their constitutional rights. Mr. Boies said the ruling being "an important first step" in ending discrimination against Americans on the basis of their sexual orientation.

"Fundamentally, we cannot allow individual rights to be determined by any majority, no matter how large," emphasized Mr. Boies. "If you do then you don't need a Constitution, the whole point of a Constitution is to say there are certain rights that the majority does not have the right to take away from the minority and that we are not going to put, as the Supreme Court said in 1933, fundamental rights up for a vote."

At one point he noted that the "concept of equality is baked into the American soul" but lamented how nations like México, Argentina, Spain and South Africa have moved ahead of us in the "march to equality."

David Boies is a lawyer and Chairman of Boies, Schiller and Flexner. He has been involved in various high-profile cases in the United States. Following the 2000 U.S. Presidential election, he represented Vice President Al Gore in the lawsuit Bush v. Gore. Together with former Solicitor General Theodore Olson, the opposing attorney in the Bush v. Gore case, Mr. Boies have significantly changed the course and the parameters of the debate over gay marriage.

The full program including all David Boies' remarks is available at Fora TV.

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Quick Hits

Here are some other news items making the rounds today.

The White House is announcing that Christina D. Romer, the chairwoman of the White House Council of Economic Advisers, will step down from the post next month. Ms. Romer is to return to California and her post as a professor at the University of California at Berkeley. The move seems more personal than a departure over policy differences. Ms. Romer has a son entering his freshman year of high school. The New York Times has more.

The Hill interviews California Congressman Henry Waxman, the chairman of the Energy and Commerce Committee. Waxman, looking on the sunny side of the street as the Democrats face an tough electoral environment, believes the November elections will likely weed out some of the “most difficult Democrats” that leadership lawmakers have dealt with this Congress.

A conservative in Colorado asks Gay Marriage, Forgive Me But What is the Problem Here?

Mother Jones has an important article looking at how the Federal housing agencies—and some of the biggest bailed-out banks—are helping shady lawyers make millions by pushing families out of their homes.

Brian Beutler has an update over at Talking Points Memo on the infighting amongst the members of the White House's National Commission on Fiscal Responsibility and Reform. Beulter writes that "a source familiar with the proceedings of the working group on discretionary spending tells TPM that some commissioners, including one military contractor, would prefer to save money by freezing military pay and scaling back benefits, rather than by eliminating waste in defense contracting.

The editorial of the day is from the Denver Post. Entitled GOP's Big Tent is a Real Circus, the editorial board writes that the "Republicans are without a credible candidate in the governor's race - but one candidate is even less credible than the other" adding that Dan Maes' "grand bike conspiracy, however, takes the cake. This man must not be governor." Meanwhile Business Week reports that Dan Maes told the Denver Petroleum Club he would cut at least 2,000 workers "just like that" from the state budget, with projected savings of $200 million as well as force a showdown with the Federal government over drilling for gas and oil.

The President Disappoints Again

In the wake of the historic ruling by Judge Vaughan Walker that found the California gay marriage ban unconstitutional because it denies gays and lesbians the due process of law and fails to meet the equal protection clause of the Fourteenth Amendment, President Barack Obama, a self-professed constitutional scholar, has via David Alexrod, his senior political advisor, reiterated his opposition to gay marriage. What's even more bizarre, and frankly, offensive is that the President in the very next breath claims that he supports "equality" for gay and lesbian couples.

He does not. Unless you support gay marriage, you do not support full equality for LGBT couples. You cannot continue to attempt to straddle both sides of the gay marriage fence. It's a shameful act of political cowardice. 

From The Hill:

President Obama remains opposed to same-sex marriage despite a federal judge's decision to strike down a ban on such marriages, a top White House adviser said Thursday.

Senior adviser David Axelrod said the president supports "equality" for gay and lesbian couples, but did not address directly Obama's position on Wednesday's court ruling, which struck down as unconstitutional California's Proposition 8, a 2008 ballot initiative banning same-sex marriage in the state.

"The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control," Axelrod said on MSNBC.

A line in the sand has been drawn. Either you are on board the equality express or you are just another derailment to overcome and toss aside. Fight for us and we fight with you; equivocate and we look elsewhere or stay home in 2012.

It is horrifying that the Administration is offering what is tantamount to a "separate but equal" treatment for gays and lesbians. It is not just unbecoming of the President to do so but it is a moral affront.

John Aravosis has posted an open letter calling on the President to support full marriage equality. It reads:

Dear Mr. President:

We are writing to ask you to come out in support of full marriage equality for gay and lesbian couples.

In 1996, you were in favor of legalizing same–sex marriage. By 2008, your public position had changed.

“Separate but equal” is wrong. It’s time for you to do the right thing, and come out again for full equality for LGBT Americans.

We are on the march towards full equality. Please join us.

It bears reminding that on this issue, Barack Obama is perhaps the only person in the country who has gone in reverse. During his first run for elective office, Barack Obama told Outlines, a local Chicago paper since merged with the Windy City Times, that he favored "legalizing same-sex marriages would fight efforts to prohibit such marriages."

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Proposition 8 in California Ruled Unconstitutional

US District Court Judge Vaughn Walker in San Francisco has struck down the California anti-gay marriage voter initiative known as Proposition 8 which had amended the state constitution to define marriage as between one man and one woman. Ruling on Perry et al v. Schwarzenegger et al, which was filed by Republican attorney Ted Olson and Democratic attorney David Boies, Judge Walker found that gays and lesbians have a constitutional right to marry.

From the decision:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that oppositesex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

More from the San Francisco Chronicle:

U.S. District Judge Vaughn Walker found that the ban on same-sex marriage violated the constitutional due process and equal protection rights of a pair of couples - one lesbian and one gay - who sued.

The judge ordered an injunction against enforcement of Prop. 8 but issued a temporary stay until he decides whether to suspend his ruling while it is being appealed. The stay means that same-sex couples are still prohibited from marrying.

"Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license," Walker wrote in a 136-page ruling.

He said the ballot measure "prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis."

The constitutional right to marry, Walker said, "protects an individual's choice of marital partner regardless of gender." He also said domestic partnerships in California, available to same-sex couples, are a "substitute and inferior institution" that lack the social meaning and cultural status of marriage.

Gov. Schwarzenegger issued a statement saying, "For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves."

Prop. 8's sponsors are planning an immediate appeal.

It's pretty quiet right here in the Castro but I suspect that in a few hours there will be a gathering down at Harvey Milk Plaza on Market & Castro to celebrate. I should note that the trial court has granted a stay of entry of judgment until the motion for a stay pending appeal can be decided. The plaintiffs must respond by August 6. The ruling is expected to be appealed to the US Ninth Circuit Court of Appeals and then up to the US Supreme Court.

The full ruling is below the fold.

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Argentina Passes a Gay Marriage Law

The Argentine Senate voted early on Thursday morning to pass the first national gay marriage law in Latin America by a vote of 33 for to 27 against with 3 abstentions. President Cristina Fernández de Kirchner, who is on a state visit to Beijing, had strongly advocated for the measure. On Sunday, the Catholic Church in Argentina had organized a mass rally against the law, which had already been approved by the lower Chamber of Deputies, that saw some 60,000 protesters stream into the Plaza de Mayo. The protests were so over the top that President Fernández de Kirchner noted that those opposed to gay marriage were using language as if from the Spanish Inquisition.

Same-sex civil unions have been legal in Uruguay, Buenos Aires and some states in Mexico and Brazil for a number of years now. Mexico City legalized gay marriage late last year with the new law taking effect this past March. Colombia's Constitutional Court granted same-sex couples inheritance rights and allowed them to add their partners to health insurance plans.

But Argentina becomes the first country in Latin America to legalize same-sex marriage, which provides more exclusive rights than civil unions, including adopting children and inheriting wealth. The new law broadly declares that ''marriage provides for the same requisites and effects independent of whether the contracting parties are of the same or different sex.''


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