It is ironic that the two attorneys joining forces to fight for gay marriage and call for the rejection of Proposition 8 in California and the Defense of Marriage Act are rivals who fought the case for the 2000 Presidential election contest in the Supreme Court between George W. Bush and Al Gore.
Now, Ted Olson and David Boies are working together after Olson won the case for George W. Bush, but both of them, one Republican and one Democrat, felt that the case for gay marriage was so strong that they were willing to overcome their rivalry, and fight for a basic human right, the right to marry, for all people, not just straight but gay as well!
It demonstrates that there is a case for both Republicans and Democrats, conservatives and progressives, to join together on an issue of fairness, equality, equal protection of the laws, and basic civil rights.
The gay marriage and gay rights movement could not have finer advocates for their cause than these two brilliant attorneys!
Hollingsworth v. Perry – SCOTUS Highlights
Justice Sonia Sotomayor: –Mr. Olson, the bottom line that you’re being asked — and — and it is one that I’m interested in the answer: If you say that marriage is a fundamental right, what State restrictions could ever exist?
Meaning, what State restrictions with respect to the number of people, with respect to — that could get married — the incest laws, the mother and child, assuming that they are the age — I can — I can accept that the State has probably an overbearing interest on — on protecting a child until they’re of age to marry, but what’s left?
Justice Samuel Alito: Seriously:– Mr. Olson, if California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that if California — if the State — if the case before us now were from a State that doesn’t provide any of those benefits to same-sex couples, this case would come out differently?
Theodore B. Olson: –Thank you, Your Honor.
As I pointed out at the — at the outset, this is a measure that walls off the institution of marriage, which is not society’s right.
It’s an individual right that this Court again and again and again has said the right to get married, the right to have the relationship of marriage is a personal right.
It’s a part of the right of privacy, association, liberty, and the pursuit of happiness.
In the cases in which you’ve described the right to get married under the Constitution, you’ve described it as marriage, procreation, family, other things like that.
So the procreation aspect, the responsibility or ability or interest in procreation is not a part of the right to get married.
Now, that–
Chief Justice John G. Roberts: I’m not sure, counsel, that it makes — I’m not sure that it’s right to view this as excluding a particular group.
When the institution of marriage developed historically, people didn’t get around and say let’s have this institution, but let’s keep out homosexuals.
The institution developed to serve purposes that, by their nature, didn’t include homosexual couples.
It is — yes, you can say that it serves some of the other interests where it makes sense to include them, but not all the interests.
And it seems to me, your friend argues on the other side, if you have an institution that pursues additional interests, you don’t have to include everybody just because some other aspects of it can be applied to them.
Theodore B. Olson: –Well, there’s a couple of answers to that, it seems to me, Mr. Chief Justice.
In this case, that decision to exclude gays and lesbians was made by the State of California.
Chief Justice John G. Roberts: Oh, that’s only because Proposition 8 came 140 days after the California Supreme Court issued its decision.
Theodore B. Olson: That’s right.
Chief Justice John G. Roberts: And don’t you think it’s more reasonable to view it as a change by the California Supreme Court of this institution that’s been around since time immemorial?
Theodore B. Olson: The California Supreme Court, like this Supreme Court, decides what the law is.
The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married–
Justice Antonin Scalia: –You — you’ve led me right into a question I was going to ask.
The California Supreme Court decides what the law is.
That’s what we decide, right?
We don’t prescribe law for the future.
We — we decide what the law is.
I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage?
1791?
1868, when the Fourteenth Amendment was adopted?
Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question?
When — when — when did the law become this?
Theodore B. Olson: –When — may I answer this in the form of a rhetorical question?
When did it become unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children to separate schools.
Justice Antonin Scalia: It’s an easy question, I think, for that one.
At — at the time that the Equal Protection Clause was adopted.
That’s absolutely true.
But don’t give me a question to my question.
[Laughter]
When do you think it became unconstitutional?
Has it always been unconstitutional?
Theodore B. Olson: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional–
Justice Antonin Scalia: That — that’s not when it became unconstitutional.
That’s when they acted in an unconstitutional matter — in an unconstitutional matter.
When did it become unconstitutional to prohibit gays from marrying?
Theodore B. Olson: –That — they did not assign a date to it, Justice Scalia, as you know.
What the court decided was the case that came before it–
Justice Antonin Scalia: I’m not talking about the California Supreme Court.
I’m talking about your argument.
You say it is now unconstitutional.
Theodore B. Olson: –Yes.
Justice Antonin Scalia: Was it always unconstitutional?
Theodore B. Olson: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that–
Justice Antonin Scalia: I see.
When did that happen?
When did that happen?
Theodore B. Olson: –There’s no specific date in time.
This is an evolutionary cycle.
Justice Antonin Scalia: Well, how am I supposed to know how to decide a case, then–
Theodore B. Olson: Because the case that’s before you–
Justice Antonin Scalia: –if you can’t give me a date when the Constitution changes?
Theodore B. Olson: –in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.
Chief Justice John G. Roberts: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
Theodore B. Olson: I would make — I would make the — also would make the — that distinguishes it in one respect.
But also — also — I would also make the argument, Mr. Chief Justice, that we are — this — marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status.
There is no question about that.
Justice Antonin Scalia: So it would be unconstitutional even in States that did not allow civil unions?
Theodore B. Olson: We do, we submit that.
You could write a narrower decision.
Justice Antonin Scalia: Okay.
So I want to know how long it has been unconstitutional in those–
Theodore B. Olson: I don’t — when — it seems to me, Justice Scalia, that–
Justice Antonin Scalia: –It seems to me you ought to be able to tell me when.
Otherwise, I don’t know how to decide the case.
Theodore B. Olson: –I — I submit you’ve never required that before.
When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
Justice Antonin Scalia: 50 years ago, it was okay?
Theodore B. Olson: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.
Justice Antonin Scalia: I can’t either.
That’s the problem.
That’s exactly the problem.
Great post Professor.
In what is apparently to be an organized campaign to, in the words of a Bill Clinton e-mail to his wife, “fulfill my wildest dreamsâ€, a draft statement from conservative lawyer and former Bush Solicitor General Theodore Olson and liberal lawyer and former Al Gore attorney David Boie was released from an anonymous hacker and dated April 1, 2013. Olson and Boies have prepared a draft article supporting the Hillary Clinton Proud, Polygamous, Polyamorous and Adulterous Too (PPPAT) initiative for publication in the Wall Street Journal. PPPAT has joined Olson and Boies by filing a friend-of-the-court brief with a law suit in favor of marriage and relationship equality that Olson and Boies have taken to the Supreme Court. The lawsuit is aimed at a referendum supporting opposite sex marriage passed by South Carolina voters.
The Olson-Boies article reads in part:
Four years ago, the two of us joined forces and launched a federal constitutional challenge to Proposition 1,373, a ballot initiative which eliminated the right of polygamous, polyamorous marriages as well as adulterous relationships in South Carolina. Our lawsuit was joined by former South Carolina Governor Mark Sanford, a conservative Republican, along with 100 prominent Republicans with similar interests as well as former President Bill Clinton, former California Governor Arnold Schwarzenegger, and television star Kody Brown.
We represent 277 loving and committed polygamists, polyamorists, and adulterers. In many ways, our clients’ relationships are indistinguishable from our own: They have lives, they breathe air, they go to the bathroom, they are raising children — lots of them — they have jobs, they pay bills, they run errands. They experience together many of the joys and sorrows and laughter as a family in America. Not long ago, the Boston Globe wrote a touching story of practicing polyamorists, revealing just how widespread is this consensual practice between human beings whose only desire is to share their love. Newsweek has also focused on the unfairness in making polyamorous marriages illegal, saying the obvious to many of us: “It’s enough to make any monogamist’s head spin. But traditionalists had better get used to it.â€
But South Carolina has locked our clients out of the institution of marriage and the relationships of their choice because they are polygamists, polyamorists, and adulterers. Governor Sanford himself was forced to flee to Argentina to conduct his affair. As the official voter guide expressly stated in 2008, Proposition 1,373 was enacted to communicate, with the force of law, that polygamous, polyamorous and adulterous relationships are not ‘okay.’ This sent the unmistakable message that such relationships are unworthy of the respect, dignity and status that society accords to opposite-sex and same-sex marriages — a status even our opponents describe as ‘indispensable to the integrity of the individual.’
While we file this case some suggest that the American people are not ready to embrace polygamous, polyamorous, and adulterous men and women as equals with respect to the right of marriage and relationship equality.
In fact, public opinion has shifted dramatically in favor of polygamous, polyamorous, and adulterous marriage and relationship equality. This very month, a Washington Post-ABC News poll found that 58% of Americans favor marriage equality, compared with just 36% against. The same poll found an astonishing 99.999% of adults under 30 in favor of sex with as many married or unmarried partners as possible. That poll came on the heels of the above mentioned friend-of-the-court brief on marriage equality filed by, among others, more than 100 prominent sex-starved yet decidedly proper Republicans.
As we have proved during a 12-day trial we won in a South Carolina federal court in 2011, laws like Proposition 1,373 cause devastating harm to the lives of polygamous, polyamorous, and adulterous men and women. President Clinton was unfortunately almost excluded from the White House. Governor Sanford was threatened with the loss of his governorship and is, as this is written, the target of a campaign to deprive him of an opportunity to serve in Congress once again. Former Governor Schwarzenegger has been forced to star in D-list movie flops.
Exclusion because of participation in the institutions of polygamy, polyamory, and adultery marks those targeted with a badge of inferiority, doomed to result in famous and lucrative television shows, bad movies, appearances on the Ellen DeGeneres show or, most horrifically, condemned to raise money for activities at which Lady Gaga must shake her booty in their face or force a once-distinguished governor to canoodle on South American beaches. The damage this does to their hearts and minds and wallets and egos and private parts is immeasurable — and the damage it does to all of us and our belief in the nation’s ideal of equality is incalculable.
For one to say that the Supreme Court should leave the question of marriage and relationship equality to the political processes of the states is to sully the reputation of one of the Court’s own, the late Justice William O. Douglas. Justice Douglas proudly committed serial adultery in the course of three of his four marriages, each of which are now known to have involved so-called “cheating†as he married successively his second, third and fourth wives almost immediately following divorces from wives one through three. As the Justices of this Court well know, a humiliating impeachment resolution targeting Justice Douglas was filed in Congress by then-Congressman Gerald R. Ford, a future president. For this pain to have been imposed on Justice Douglas, accompanied in the media by suggestions that his adulterous affairs were somehow not “okay†and therefore not a fundamental right caused devastating pain and humiliation not just to Justice Douglas and his wives 1 through 3 but to the governmental harmony of the United States itself.
The Constitution forbids such an indecent result. It did not tolerate it in separate schools and drinking fountains, it did not tolerate it with respect to bans on interracial marriage, and it does not tolerate it here.
Because of their sexual drive, a characteristic with which they were born and which they cannot change — our clients and hundreds of thousands of polygamous, polyamorous, and adulterous men and women in South Carolina and across the country are being excluded from dozens and dozens and dozens of life’s most precious relationships.
Opening to them participation in the unique and immensely valuable institution of marriage and hot sex will not diminish the value or status of marriage and hot sex for those who prefer a two-couple marriage, whether gay or straight. But withholding marriage or adulterous relationships causes infinite and permanent stigma, pain and isolation. It denies polygamists, polyamorists and adulterers their identity and their dignity; it labels their families and their relationships as second rate.
This outcome cannot be squared with the principle of equality and the unalienable right to liberty with presidential interns, Argentine hotties, or even a gubernatorial housekeeper — happiness — that is the bedrock promise of America from the Declaration of Independence to the 14th Amendment, and the dream — the fantasy — of all Americans.
This badge of inequality must be extinguished.
Ok, Juan, stop the bull–enough already! LOL