Ted Olson: Proposition 8 Decision "Judicial Responsibility in its Classic Sense"

Via Think Progress.

In this exchange, Ted Olson, who along with David Boies successfully led the legal challenge that overturned Proposition 8 banning gay marriage in California, told Fox News' Chris Wallace that it's not "judicial activism" when a judge follows the Constitution.

"Where is the right to same-sex marriage in the Constitution?" asked Wallace.

"Where is the right to interracial marriage in the Constitution, Chris?" replied Olson.

"The Supreme Court has looked at marriage and has said that the right to marry is a fundamental right for all citizens. So you call it interracial marriage and then you could prohibit it, no? The Supreme Court said no. The same thing here," Olson argued.

"The judge after hearing three weeks of testimony and full day of closing arguments and listening to experts from all over the world concluded that the denial of the right to marry to these individuals in California hurt them and did not advance the cause of opposite sex marriage," Olson added.

"This is what judges are expected to do. It's not judicial activism. It's judicial responsibility in the classic sense," emphasized Olson. 

As Olson and Boies have demonstrated minority rights cannot be subject to popular votes. 

Olson shot down every single argument that Wallace tried to advance. In the end Wallace conceded, “Mr. Olson, we want to thank you so much for joining us today. We’ll keep following your lawsuit. And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the supreme court, sir.”


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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The Right Wing Reacts to the Overturning of Prop 8

Many of my fellow conservatives have an almost knee-jerk hostility toward gay marriage. This does not make sense, because same-sex unions promote the values conservatives prize. Marriage is one of the basic building blocks of our neighborhoods and our nation. At its best, it is a stable bond between two individuals who work to create a loving household and a social and economic partnership. We encourage couples to marry because the commitments they make to one another provide benefits not only to themselves but also to their families and communities. Marriage requires thinking beyond one's own needs. It transforms two individuals into a union based on shared aspirations, and in doing so establishes a formal investment in the well-being of society. The fact that individuals who happen to be gay want to share in this vital social institution is evidence that conservative ideals enjoy widespread acceptance. Conservatives should celebrate this, rather than lament it.

Theodore Olsen's wrote his heartfelt and moving op-ed making the Conservative Case for Gay Marriage earlier this year as he was preparing along with David Boies to argue the case against the California ban on gay marriage that had been approved by the voters with the passage of Proposition 8. The op-ed is, of course, a testament that many conservatives do recognize the gross injustice against gays and lesbians in denying them the civil right to marriage. As Mr. Olsen noted then "legalizing same-sex marriage would also be a recognition of basic American principles, and would represent the culmination of our nation's commitment to equal rights." Unfortunately, a large number on the right still do not yet concur with that view.

With US District Court Judge Vaughn Walker's historic ruling in the Perry et al v. Schwarzenegger et al that the ban on gay marriage violated the equal protection clause of the Fourteenth Amendment to the Constitution, it's clear that very few conservatives are celebrating the landmark decision and many are doing much more than just lamenting it. The right's reaction has ranged from incredulity and disbelief to anger and outright hate peppered with the obligatory doses about judicial tyranny.

Randy Thomasson, the head of the Campaign for Children and Families and of an outfit called Save California, blasted Judge Walker for having "trampled the written Constitution, grossly misused his authority and imposed his own agenda, which the Constitution does not allow" in a statement. 

Tony Perkins, President of Family Research Council, compared the decision to Roe v. Wade, the 1973 decision that legalized abortion. "This lawsuit, should it be upheld on appeal and in the Supreme Court, would become the 'Roe v. Wade' of same-sex 'marriage,' " said Perkins. Perkins feared the ruling would overturn marriage bans adopted by dozens of states if it is upheld, a sentiment echoed by others on the religious right.

Perkins told CNN that he will work to make the ruling an issue in this Fall's midterm elections. "This is the age of the Tea Party, where you have people saying government is not listening," Perkins told CNN. "And here you have a judge saying seven million people (who supported California's Proposition 8 ) don't matter."

Brian Brown, president of the National Organization for Marriage (NOM), who is out on his cross country bus tour in the defense of traditional marriage was incredulous and left gasping for words until it came time to beg for more money in order to fight the appeal.

Maggie Gallagher, president of the Institute for Marriage and Public Policy and a columnist for various conservative publications, called the decision "outrageous" and "an extraordinary moment." Gallagher told right wing radio talk show host Lars Larson, "here you have an openly gay judge, you can read the Constitution and you cannot find in it any endorsement  of the idea, our Founding Fathers created no rights to gay marriage." She added that the decision was "intellectually absurd" and that "what we're seeing is an outrageous exercise in judicial tyranny." She noted that the decision "will mean that gay marriage advocates will use our Constitution to impose gay marriage on all of us whether we like it or not" — a somewhat ironic choice of words echoing San Francisco Mayor Gavin Newsom's prophesy several years back.

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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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Prop. 8 Federal Lawsuit Begins, Cue Right-Wing Media Hysteria

This week in a San Francisco Federal District Court, a legal odd couple will be on display. Attorney David Boies, who represented Al Gore before the U.S. Supreme Court in the infamous 2000 case ofBush v. Gore, and conservative attorney Ted Olson, who represented George W. Bush, are joining forces to overturn California's Proposition 8. It will be their contention that the initiative passed by voters in 2008 banning same-sex marriage in the Golden State violates the Equal Protection and Due Process clauses of the U.S. Constitution, singles out gays and lesbians for a disfavored legal status, and discriminates on the basis of gender and sexual orientation.

Regardless of which side prevails, experts agree the case is likely to be appealed all the way to the highest court in the land.

Cue right-wing media hysteria and homophobia.

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