Video: Ted Olson and David Boies on why Prop 8 is unconstitutional

posted at 7:37 pm on May 28, 2009 by Allahpundit

As clear and simple a case for attacking marriage laws in the courts as you’re ever likely to hear. In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry. Granted, 57 percent of the public likes it that way, but to a judge charged with protecting individual rights against majority discrimination, that’s immaterial. I’ve always suspected that the reason the Court hasn’t confronted this question directly yet is because neither the conservative wing nor the liberal wing feels confident enough about Kennedy’s swing vote. The conservatives suspect — rightly, given his record on this subject — that Kennedy will vote with the liberals; the liberals figure that, with a Democrat in the White House, they can bide their time and wait for Obama to replace one of the conservatives with a liberal, thereby assuring the outcome. I wonder if having heavyweights like Olson and Boies pushing it won’t sway the liberals to take the case this time, though. (Only four votes are needed to grant certiorari.) The oldest conservative member of the Court is Scalia at just 73, so there’s no assurance The One will be able to tip the balance with an appointment even if he serves two terms. It might be now or never.

One interesting footnote: Olson tips their hand a bit as to strategy when he refers offhandedly to discrimination against gays having no “rational basis.” That’s a legal term of art that comes from the Court’s equal protection jurisprudence. Minorities that are deemed specially vulnerable are considered “suspect classes” and laws that target them are reviewed with “strict scrutiny”; laws targeting all other groups (well, almost all other groups) are reviewed more leniently and will be upheld if the state can merely show a “rational basis” for enacting them. It sounds like Olson and Boies aren’t going to try to get the Court to declare gays a “suspect class,” which is how issues like this are normally approached, but instead will make their case on rational basis grounds. Why do it that way? Because Kennedy himself used that very same logic in his opinion for the Court in Romer v. Evans, declaring that a Colorado law declining special protection to gays had no “rational relationship” to any legitimate state interest. In other words, they’re playing straight for the swing vote. Smart.


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If so, wouldn’t that gene be eliminated from the gene pool in a very short amount of time?

mankai on May 28, 2009 at 8:53 PM

Not when you count all of the homosexuals who lived as heteros for most of their lives. Homosexuals can have hetero sex, they just don’t enjoy it.

Could we not treat homosexuals in the same way?

Bishop on May 28, 2009 at 8:53 PM

I imagine the difference is that because homosexuals aren’t harming anyone, why would we need to?

From a religious perspective, it makes sense, as most Christians see it as a sin that separates them from God, but outside of that, this isn’t something that society has an invested interest in.

Esthier on May 28, 2009 at 8:58 PM

If homosexuality cannot be “cured” (although many have stated it can be) then neither can pedophilia. That at least makes the argument that pedophiles should be locked up for life without parole in every case. Of course the libs argue AGAINST that because they claim that it CAN be cured. Interesting argument.

echosyst on May 28, 2009 at 9:00 PM

Sure. Some cultures are cool with that, and let’s be real, it’s a conceivable conclusion if the USA someday recognizes polygamists the same way we recognize race, gender, religion, national origin, and sexual orientation.

That’s not something I’m comfortable with but I’d rather have that then not allow homosexual couples who love each other other to have the same rights as a heterosexual couple.

Proud Rino on May 28, 2009 at 8:56 PM

Well, as long as you agree both groups should be granted this privilege. Remember, it doesn’t really matter what we are comfortable with (especially if we take the whole societal norm argument out – which we do with gay marriage)…

Upstater85 on May 28, 2009 at 9:01 PM

Yeah, I’m sure the existing laws will take care of those occurrences. Changing the name from “marriage” to “civil union” will just make it a contract like any other.

AbaddonsReign on May 28, 2009 at 8:57 PM

Except that contract law does not allow consenting adults to contract for anything they want. Well, at least, enforecable contracts. They can write anything down on paper they want, but getting legal effect requires the participation of the legal system.

Wethal on May 28, 2009 at 9:01 PM

I don’t believe they can be cured. They can only control their urges. We could treat homosexuals the same way, but we don’t because it’s between consenting adults and homosexuality is not illegal.
Proud Rino on May 28, 2009 at 8:57 PM

Yet consenting adults in a polygamous situation is something you’re not comfortable with; why, they’re adults? Should we make polygamy legal or homosexuality illegal, or just open things up as long as the concerned adults are consenting?

Bishop on May 28, 2009 at 9:01 PM

So I wonder when we will feel comfortable lowering the age of consent? 10 years? 20 years?

Upstater85 on May 28, 2009 at 9:02 PM

Of course the libs argue AGAINST that because they claim that it CAN be cured. Interesting argument.

I don’t argue that it can be cured, I do think that they can learn to control those urges with therapy. Someone that has those urges may be an otherwise productive member of society; if they can control those urges, there is no reason they cannot live life freely and contribute to society.

It’s not illegal to be a pedophile – it’s illegal to commit pedophilic acts.

Proud Rino on May 28, 2009 at 9:03 PM

Esthier on May 28, 2009 at 8:58 PM

So the only way for the gene which the gene pool would eliminate as anti-life and unnatural is still in the gene pool because the inferior genetic humans act in defiance of their genes as a way of perpetuating a genetic code that would most assuredly die off on its own? That’s the argument?

mankai on May 28, 2009 at 9:03 PM

I imagine the difference is that because homosexuals aren’t harming anyone, why would we need to?

We treat other “illnesses” (for lack of a better term) that people have even though they have never harmed anyone either, using a variety of methods.

Bishop on May 28, 2009 at 9:04 PM

Could we not treat homosexuals in the same way?

Bishop

I wish there was a treatment to cure you.

Grow Fins on May 28, 2009 at 9:05 PM

Well, as long as you agree both groups should be granted this privilege. Remember, it doesn’t really matter what we are comfortable with (especially if we take the whole societal norm argument out – which we do with gay marriage)…

Upstater85 on May 28, 2009 at 9:01 PM

I meant, I’d rather have that possibility in the future. Right now we don’t recognize polygamy the same way we recognize race, gender, national origina, religion, etc. Maybe we will some day. I hope not, but we might. Like I said, the risk of that possibility is something I’m willing to take, but it’s not something I’m happy with.

Proud Rino on May 28, 2009 at 9:06 PM

Black people are slaves.

Women aren’t allowed to vote.

Proud Rino on May 28, 2009 at 8:10 PM

Try this:

Beastiality should be legal!
Why?
Because at one time “Black people were slaves” and “Women weren’t allowed to vote.” And since we now know how wrong that was…blah blah blah blah blah

See Proud Rino, anyone can mix apples and oranges and make bogus arguments. It is your forte.

Geochelone on May 28, 2009 at 9:06 PM

So I wonder when we will feel comfortable lowering the age of consent? 10 years? 20 years?

Upstater85 on May 28, 2009 at 9:02 PM

I have no ideas. Historically, we’ve been raising that age, not lowering it.

Proud Rino on May 28, 2009 at 9:07 PM

Adults can “consent” to all kinds of things. Should all activity that occurs between “consenting adults” therefore be legal?

echosyst on May 28, 2009 at 9:08 PM

Geochelone on May 28, 2009 at 9:06 PM

The fact that something used to be one way does not mean that way is the correct way.

It doesn’t mean that it’s the *incorrect* way either. It’s an irrelevant argument to say, “Marriage is between a man and a woman.”

Proud Rino on May 28, 2009 at 9:09 PM

So I wonder when we will feel comfortable lowering the age of consent? 10 years? 20 years?

Upstater85 on May 28, 2009 at 9:02 PM

I’ll bet on the 20 or more, but even then I doubt we’ll go any further than 16 or 15. I can see how the sexting craze might expedite the discussion.

That’s the argument?

mankai on May 28, 2009 at 9:03 PM

Not just that. There’s also the argument that it could be a recessive gene, like blond hair, where a mother or father could be a carrier and yet not have the trait. My brother and I are both blond, but my father has brown hair and my mother red.

Esthier on May 28, 2009 at 9:09 PM

I wish there was a treatment to cure you.
Grow Fins on May 28, 2009 at 9:05 PM

Legitimate question on my part, not that you would understand; you’re a lib after all. :-)

Bishop on May 28, 2009 at 9:12 PM

We treat other “illnesses” (for lack of a better term) that people have even though they have never harmed anyone either, using a variety of methods.

Bishop on May 28, 2009 at 9:04 PM

Yes, and when homosexuality was considered an illness I imagine that is how we treated them. But we’ve since changed how we view homosexual behavior and don’t see it as an illness, unless of course it interferes with the homosexuals beliefs.

Generally speaking, we only treat people who either want treatment because they feel their “behavior” is harmful in some way, or because their behavior is a threat to society in some way.

Esthier on May 28, 2009 at 9:12 PM

It doesn’t mean that it’s the *incorrect* way either. It’s an irrelevant argument to say, “Marriage is between a man and a woman.”

Proud Rino on May 28, 2009 at 9:09 PM

yeah lets just throw out thousands of years of history, cause *we* are so advanced and ‘evolved’ ie arrogant.

*we* didn’t come up with marriage, its hubris for us to change what it means…professing to be wise, they have become fools..

right4life on May 28, 2009 at 9:13 PM

If homosexuality cannot be “cured” (although many have stated it can be) then neither can pedophilia. That at least makes the argument that pedophiles should be locked up for life without parole in every case. Of course the libs argue AGAINST that because they claim that it CAN be cured. Interesting argument. – echosyst on May 28, 2009 at 9:00 PM

Pedophilia equals homosexuality……….please not again.

SC.Charlie on May 28, 2009 at 9:13 PM

I meant, I’d rather have that possibility in the future. Right now we don’t recognize polygamy the same way we recognize race, gender, national origina, religion, etc. Maybe we will some day. I hope not, but we might. Like I said, the risk of that possibility is something I’m willing to take, but it’s not something I’m happy with.

Proud Rino on May 28, 2009 at 9:06 PM

I have no ideas. Historically, we’ve been raising that age, not lowering it.

Proud Rino on May 28, 2009 at 9:07 PM

Historically, there has been polygamy and no gay marriage. People felt more comfortable with it that way, I guess.

This argument that things, words, definitions etc change over time is the same argument that will lower the age of consent. That’s not slippery slope-ism. That’s just reason. Further, you seem to be saying that we shouldn’t have Polygamy because it’s something society isn’t comfortable with. I’d say society (at the moment) isn’t very comfortable with gay marriage.

Upstater85 on May 28, 2009 at 9:13 PM

I’ll bet on the 20 or more, but even then I doubt we’ll go any further than 16 or 15. I can see how the sexting craze might expedite the discussion.

Esthier on May 28, 2009 at 9:09 PM

Ah… yeah. Sexting. Something society isn’t quite ready for :)

Upstater85 on May 28, 2009 at 9:14 PM

Prop 8 is “unconstitutional” only because it opposes leftist goals.

Quoth Obama: “I won.”

BKennedy on May 28, 2009 at 9:15 PM

Bull shit. Marraige is not about love. It is im fact not about commitment. Even Prager gets this wrong. The heck with tradition.

Marriage is in fact the basis for a family. If a couple can not procreate it is a fact they can not marry. Anyone in the U.S. can have a bond that society will accept. However when a man stands up in front of society and says that the children of this women are in fact my children and she says that these children are the fruit of this man and our marriage then and only then are two people married.

Rights? Can I marry my brother so he can have insurance. How about my sister or Mother even Dad. How about ten other women not my current wife. This list is insane.

Marriage is always and forever about commitment to family.

TomLawler on May 28, 2009 at 9:16 PM

Brothers want to marry their sisters, sometimes.

See: Pharoahs; Egypt.

If you destroy age-old meanings and cultural bulwarks against societal fragmentation you risk Father-daughter, Mother-Son, Man-Boy. Woman-Girl “marriages”, as well as polygamy, bestiality (why not, you speciesist!?), polyandry and the complete sexualization of childhood, education and the endless dilution and disintegration of this fundamental spine of civilization, “marriage”, in our already stressed legal system.

profitsbeard on May 28, 2009 at 9:17 PM

Yes, and when homosexuality was considered an illness I imagine that is how we treated them. But we’ve since changed how we view homosexual behavior and don’t see it as an illness

Yep, we’ve normalized aberrant human behavior, yet supporters of the gay movement have professed to be “uncomfortable” with the idea of polygamy for some odd reason.

Bishop on May 28, 2009 at 9:17 PM

The fact that something used to be one way does not mean that way is the correct way.

It doesn’t mean that it’s the *incorrect* way either. It’s an irrelevant argument to say, “Marriage is between a man and a woman.”

Proud Rino on May 28, 2009 at 9:09 PM

So, history means nothing and has no bearing. Words have no real meaning. In the future if I can get a judge to change the meaning of the word tobacco to include marijuana all states must then allow it’s legal growth and sale?

Rocks on May 28, 2009 at 9:18 PM

Pedophilia equals homosexuality……….please not again.

SC.Charlie on May 28, 2009 at 9:13 PM

That’s not the argument. There are so few sexual things that people argue are innate. Pedophilia, homosexuality and heterosexuality are pretty much the only ones. It’s only natural that when discussing innate traits that someone might compare the two, simply to compare what it means to be born with a sexual trait.

Just because you’re comparing the two, it doesn’t mean you’re equating them.

Esthier on May 28, 2009 at 9:20 PM

The fact that something used to be one way does not mean that way is the correct way.

It doesn’t mean that it’s the *incorrect* way either. It’s an irrelevant argument to say, “Marriage is between a man and a woman.”

Proud Rino on May 28, 2009 at 9:09 PM

So, history means nothing and has no bearing. Words have no real meaning. In the future if I can get a judge to change the meaning of the word tobacco to include marijuana all states must then allow it’s legal growth and sale?

Rocks on May 28, 2009 at 9:18 PM

I have no ideas. Historically, we’ve been raising that age, not lowering it.

Proud Rino on May 28, 2009 at 9:07 PM

On the contrary…

Upstater85 on May 28, 2009 at 9:22 PM

How about promoting procreation? Sounds pretty rational to me…

tommylotto on May 28, 2009 at 9:23 PM

Pedophilia equals homosexuality……….please not again.

They may not be equal in the moral sense because of the consent issue, but people in both groups are making the same argument, which is that their desires and sexual preferences are involuntary. One groups says their lifestyle should be embraced and mainstreamed, the other we treat as deviant criminals that should be locked up forever.

It is not a tenable argument. The uncomfortable truth is that there are people out there that fall into both groups, something the homosexual community refuses to acknowledge. Is a male pedophile who preys on young boys also gay? Many are. Could this mean that this persons brain is just plain wired wrong? Perhaps.

The reason homosexuality is no longer considered a mental disorder has more to do with political correctness and pressure from gay groups than science. The fact is that there is still much we don’t know about why someone may be gay.

I know people who led a heterosexual lifestyle until middle age and then went the other way. Does that not deflate the genetic predisposition argument completely? What about the identical twin studies that are showing a low correlation of both twins being gay even though they are genetically identical? How does one explain bisexuality?

echosyst on May 28, 2009 at 9:24 PM

They sure are, but children can’t consent and homosexuality is not illegal.

Proud Rino on May 28, 2009 at 8:51 PM

Uh, used to be. ‘Til SCOTUS got a hold of that one, too. Used to be considered a psychiatric abnormality, as well, ’til the APA got all scared of the political pushback.

So now, if you have an excess amount of stress, it’s anxiety–which is a pscyhological disorder. But if you can’t figure out the right mating partner, it’s “biological” but has nothing to do with the mind, emotions, etc. So where does homosexual desire come from if not the pituitary gland–in the brain?

You can’t have the argument both ways, really. Either it’s an abnormality by nature, in which case it’s clearly a psychological disorder, or it’s by nurture, in which case it’s probably a psychological disorder anyway but then at least you can try to argue otherwise I suppose.

And if it is a psychological disorder, let’s treat it for cryin’ out loud. We don’t let those who suffer other abnormalities go around doing what they please. It’s not good for the person, and it’s not good for society.

“Oh but it can’t be treated–that’s a lie!” Look, many psychological disorders are not ever “cured,” even adult ADD, which is actually treatable with the right drug. But we don’t just throw our hands up and say, oh the heck with it, anyone who has depression here’s a knife so you can have an equal opportunity to cut your own throat.

cackcon on May 28, 2009 at 9:28 PM

Proud Rino on May 28, 2009 at 8:14 PM

What gays are going through is pretty much the same thing black went through.

Ampersand on May 28, 2009 at 8:19 PM

Yeah, just minus the police dogs and fire hoses, and the lynchings, etc. Oh wait…

Dark-Star on May 28, 2009 at 9:29 PM

Ah… yeah. Sexting. Something society isn’t quite ready for :)

Upstater85 on May 28, 2009 at 9:14 PM

I’m certainly not. I don’t even know that I’d want my hypothetical teen to even have a camera phone.

Yep, we’ve normalized aberrant human behavior, yet supporters of the gay movement have professed to be “uncomfortable” with the idea of polygamy for some odd reason.

Bishop on May 28, 2009 at 9:17 PM

Most are also uncomfortable with incest, even between consenting adults and even between homosexuals even though it does away with the child defect issue.

Some sexual deviations from the norm are still more accepted than others. Time may change that, or it may force the backlash often seen when a society pushes morals further than society at large is comfortable with.

Esthier on May 28, 2009 at 9:31 PM

What gays are going through is pretty much the same thing black went through.

A preposterous statement. Tell an older black person that and see what they say. By the way, that would be the group of people that voted FOR traditional marriage at a 70% rate in California.

echosyst on May 28, 2009 at 9:32 PM

“That’s not the argument. There are so few sexual things that people argue are innate. Pedophilia, homosexuality and heterosexuality are pretty much the only ones. It’s only natural that when discussing innate traits that someone might compare the two, simply to compare what it means to be born with a sexual trait.” Esthier

The abuse of children ………. is considered to be innate?

SC.Charlie on May 28, 2009 at 9:35 PM

How about promoting procreation? Sounds pretty rational to me…

Agreed. The government can barely deliver mail but it sure as hell is good at promoting procreation.

radiofreevillage on May 28, 2009 at 9:37 PM

What gays are going through is pretty much the same thing black went through.

A preposterous statement. Tell an older black person that and see what they say. By the way, that would be the group of people that voted FOR traditional marriage at a 70% rate in California.

echosyst on May 28, 2009 at 9:32 PM

I guess I should have added the sarc/ tag but I thought it went without saying…

Ampersand on May 28, 2009 at 9:38 PM

The abuse of children ………. is considered to be innate?

SC.Charlie on May 28, 2009 at 9:35 PM

The desire to engage in a sexual relationship with a child, that is argued to be innate.

Esthier on May 28, 2009 at 9:38 PM

I guess I should have added the sarc/ tag but I thought it went without saying…

Sorry, I should have known…

echosyst on May 28, 2009 at 9:40 PM

Is necrophilia innate? If a woman wills her body to me I can keep it and continue to have sex with it?

Is Sadomasochism innate? If a woman agrees to be my slave this can be written into a marriage contract? Erotic asphyxiation can not be outlawed?

Rocks on May 28, 2009 at 9:43 PM

Give me a break, Olson. Being gay is a sexual perversion and being black is a physical representation of genetic code. One cannot will oneself into another race while one could, in the very least, remain abstinent instead of engaging in sin. I will not be brow-beaten or guilted into saying otherwise. We need to take a moral stand here.

pugwriter on May 28, 2009 at 9:44 PM

In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry.

In a nutshell, is Boies and Olsen equating perversity with skin color?

How does personal choice fall under the 14th amendment equal protection?

Just define perversity and then show why the term marriage is a right and the rest should be and well, still doesn’t rise above a personal level does it?

Does our national Constitution enumerate personal issues authority?

Speakup on May 28, 2009 at 9:45 PM

I’m certainly not. I don’t even know that I’d want my hypothetical teen to even have a camera phone.
Esthier on May 28, 2009 at 9:31 PM

Yeah, I think more teens sext than we are aware of. I’ve heard some pretty disturbing stories from my younger brothers. That said, I find some of these “Distribution of Child Porn” charges a little too harsh. Straighten out the kids instead of giving them a sentence that will literally follow them their whole lives.

Upstater85 on May 28, 2009 at 9:45 PM

discrimination against gays [has] no “rational basis.”

Ummm… How about: gay sex doesn’t result in reproduction? Or isn’t the state supposed to have an interest in the perpetuation of the species?

If the counter-argument is that marriage has nothing to do with having children (which has been argued in court), then there is no legal reason to ban incest or polygamy, and only a weak argument (since minors already have a right to contraception and abortion) against pedophilia.

In some states it’s legal to marry your 1st cousin, in others it isn’t. Are the states that forbid it illegally discriminating against cousin-lovers?

This is all such BS. Liberals are so arrogant they think they know more about what civilization and society needs than thousands of generations of humans that got us to this point. And gays don’t really want marriage, they just want the legitimacy the institution would lend to their lifestyle without having to do the work to earn it.

Socratease on May 28, 2009 at 9:45 PM

Is necrophilia innate? If a woman wills her body to me I can keep it and continue to have sex with it?

Wow, I’ve never even gone there in thought. Legally, I don’t see why you shouldn’t be able to except that a woman can change her mind at any point during sex and call you a rapist. If she’s dead, she no longer has that option, so erring on the side of caution, it’s still illegal.

Is Sadomasochism innate? If a woman agrees to be my slave this can be written into a marriage contract? Erotic asphyxiation can not be outlawed?

Rocks on May 28, 2009 at 9:43 PM

I’m not sure either of those are illegal. Are they? Or is it just that consenting adults never call the police on each other?

Esthier on May 28, 2009 at 9:46 PM

In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry.

Well, gosh, how about because history is full of people of different races marrying, but the definition of marriage has always involved members of the opposite sex?

The first goes to what kind of marriages are allowed. The second goes to what marriage is. If he really can’t tell the difference between those two things, he must not be much of a lawyer.

Greg Q on May 28, 2009 at 9:51 PM

That said, I find some of these “Distribution of Child Porn” charges a little too harsh.

Upstater85 on May 28, 2009 at 9:45 PM

I agree, and yet, these are teens who want to be treated like adults, and whether they like it or not, those pictures are now someone else’s and can be spread around for kiddie porn.

I don’t want them hauled before court, but I do wish we could legally sanction someone to smack them all upside the head a few times until they get exactly what it is they’re doing. They just don’t get it, and more often than not they want complete immunity from any consequences of their own actions.

That’s a normal teenage reaction, but it’s magnified in these cases.

Esthier on May 28, 2009 at 9:54 PM

I’m with this commenter:

Skin color and sexual preference are not the same thing Ted.

SoulGlo on May 28, 2009 at 7:43 PM

Skin color is an immutable characteristic, while sexual preference is a matter of voluntary behavior. First and last, SSM is nothing but an attempt to have homosexuality placed on the same level as the relationship that’s the foundation of our ordered society–traditional marriage.

BTW: anybody see the report about Alameda, California’s new “bully” [read "age-appropriate sex education"] curriculum for children from kindergarten through fifth grade? Sweet. Parents can’t even be allowed to pull their kids out if they object because it’s been classified as some BS curriculum subject rather than sex education. The people who developed it met in secret until it was time to roll it out. Oh, parents aren’t even going to be told when the course is taught so that parents don’t try to remove the for the day.

Gay nazis are coming for all of us.

BuckeyeSam on May 28, 2009 at 10:05 PM

Is necrophilia innate? If a woman wills her body to me I can keep it and continue to have sex with it?

Is Sadomasochism innate? If a woman agrees to be my slave this can be written into a marriage contract? Erotic asphyxiation can not be outlawed?

Rocks on May 28, 2009 at 9:43 PM

In each case it really comes down to whether you are violating the rights of another person.

Gay people already legally have sex. Marriage would recognize the exclusivity and permanence of the commitment.

dedalus on May 28, 2009 at 10:19 PM

If homosexuality cannot be “cured” (although many have stated it can be) then neither can pedophilia. That at least makes the argument that pedophiles should be locked up for life without parole in every case. Of course the libs argue AGAINST that because they claim that it CAN be cured. Interesting argument.

echosyst on May 28, 2009 at 9:00 PM

The Brits cured Alan Turing, the father of modern computer science.
They tried to chemically alter his sexuality and they killed him.
A cure of sorts.

strangelet on May 28, 2009 at 10:21 PM

It’s better to say that they don’t cause harm to anyone else, because homosexuality was at one point as well.

Esthier on May 28, 2009 at 8:54 PM

Yes, though it is of interest that many Western countries have looked at the issue and taken the criminal conduct laws relating to homosexuality off the books during the past few decades.

dedalus on May 28, 2009 at 10:21 PM

Gay nazis are coming for all of us.

BuckeyeSam on May 28, 2009 at 10:05 PM

I think I get your point. However, the visual element of your statement is very funny to picture. Something Mel Brooksish about it.

dedalus on May 28, 2009 at 10:36 PM

Olson and Boies are WRONG to say that a ban on gay marriage has no rational basis. It does have a rational basis; it just involves a belief that traditional marriage needs to be preserved for the best interests of society — for the raising of children and social stability — and that gay marriage undermines traditional marriage. The People have the right to so view the subject matter and enact law based on what is a traditional view of the matter.

Olson, Boies and Antione Kennedy may personally not believe that traditional marriage needs to be preserved for the best interests of society and that gay marriage undermines traditional marriage. But so what? To say there is no rational basis for the ban on gay marriage presupposes cetain beliefs that if lawyers and judges read into the general language of the equal protection clause, they are doing so as an act of usurpation of the rights of the People.

Olson is thus embracing the judicial activism that conservative strict constructionists abhor, reading into general language of the U.S. Constitution his own personal beliefs to override what the People have decided. That is elitist; that is contrary to popular sovereignty. If Olson says otherwise, then he is not being intellectually honest. Boies is a liberal, so he is acting per what he believes.

Phil Byler on May 28, 2009 at 10:50 PM

Hey… what’s everyone talking about???

;-)

D2Boston on May 28, 2009 at 10:56 PM

If so, wouldn’t that gene be eliminated from the gene pool in a very short amount of time?

mankai on May 28, 2009 at 8:53 PM

You must be a creationist–you clearly do not understand genetics.

hicsuget on May 28, 2009 at 11:34 PM

This one’s really easy, AP. Being black isn’t the same thing as being a woman. It’s so blindingly obvious that saying black and white people can’t get married is not the same thing as saying men can’t get married to each other, it continues to be ridiculous to even have this discussion.

Thomas Sowell has made the policy argument most succinctly, but it would take me too long to find one of his columns outlining it. The bottom line is that this is not about discrimination, it’s about the definition of marriage. Defining marriage as between a man and a woman doesn’t discriminate against gays, period. They are free to marry anyone of the opposite sex who is of legal age and not already married.

This is not a legal issue, this is a policy issue. The Constitution does not address it. The people should decide it.

J.E. Dyer on May 28, 2009 at 11:46 PM

Gay nazis are coming for all of us.

BuckeyeSam on May 28, 2009 at 10:05 PM

‘Member when you said I was “unserious” commenter?

Yeah.

With regard to the “Marriage is for families!” argument. It’s nonsense. We allow people to get married if they’re sterile. We allow people to get married without any child requirement. We give them the rights and benefits granted to a married couple *before* they have children, and if we were truly incentivizing larger families, we wouldn’t give any marriage benefits until people started having kids. Families that have adopted children are, as far as the government is concerned, the same as families whose children are related by blood.

So…yeah…that one’s not gonna work.

Proud Rino on May 28, 2009 at 11:56 PM

Defining marriage as between a man and a woman doesn’t discriminate against gays, period.

Defining marriage as between a man and a woman of the same race doesn’t discriminate against minorities, period.

Proud Rino on May 28, 2009 at 11:58 PM

The commenters above who make the point between arguing what marriages are allowed and what marriage is have it exactly right.

The pro-gay marriage view is assuming their conclusion. More specifically, there is a difference in the definitions of marriage.

Currently, marriage is defined as the union of one man and one woman. Right or wrong, that is the current definition. (People who wish to change this might want to do a historical look to see if anyone has ever allowed other types of marriages. And I mean before 1970 or so. Like, did ancient Greece allow it?)

Before you can argue whether homosexuals can marry, you need to change the definition of marriage. Currently, ‘gay marriage’ is a logical contradiction. If we enumerate the terms of the current definition of marriage, we see that:

1) It is between 2 people.
2) The people must be of opposite gender. (This is equivalent, by 1), to saying that there must be one male and one female.)
3) Certain issues of consanguinity must be met.
4) The people must be of the age of consent.

As far as I know, pro-gay marriage people want to eliminate 2) without touching any of the others. The question that then must be asked is what argument would you use to defend the then-current definition of marriage (which, apparently, you’re happy with) when another group seeks to amend a term.

This is the reason people bring up polygamy and other issues. _Particularly_ when you use a legal argument that says that the current definition is too restrictive (which is what a ‘civil rights’ argument is), then you can use a similar argument on any of the terms.

Scott H on May 29, 2009 at 12:00 AM

Another question that needs to be discussed is the purpose of marriage. What purpose does it serve? Many people here seem to view it as a legal tax shelter, and no more.

If that is so, there is no legal reason to restrict ‘marriage’ in the least.

Another way to ask this question: what does a marriage create? It doesn’t create a relationship (in a social sense). It is (legally) a method for defining that relationship. I would argue that a marriage creates a family (even without children).

Regardless, it is a question that _needs_ to be discussed.

Scott H on May 29, 2009 at 12:06 AM

Is necrophilia innate? If a woman wills her body to me I can keep it and continue to have sex with it?

Is Sadomasochism innate? If a woman agrees to be my slave this can be written into a marriage contract? Erotic asphyxiation can not be outlawed?

Rocks on May 28, 2009 at 9:43 PM

In each case it really comes down to whether you are violating the rights of another person.

Gay people already legally have sex. Marriage would recognize the exclusivity and permanence of the commitment.

dedalus on May 28, 2009 at 10:19 PM

The point is all these things were consented to by adults. No rights are being violated.

The dead woman’s consent can clearly be shown if she leaves a will which states whoever has legal possession of her body can have sex with it but it is still a felony in Nevada punishable with up to life in prison.

An adult can clearly consent to be abuse someone for a sex act but no judge is going to void a prenuptial agreement and annul a marriage on the grounds that one spouse refuses to consummate the marriage because they no longer consent to abusing someone yet consents to intercourse.

An adult can clearly consent to allow themselves to be choked but showing you have a fetish for this will not only not prevent you from being committed to an institution but will be used effect said committal.

This acts are not illegal or unenforceable because they violate anyone’s rights. They are illegal because society deems them immoral or unhealthy. How can they be either if they are innate?

If the courts were to state that legally a person’s sexuality is innate, whether it is homo or heterosexual, then it is illogical to assume necrophilia and S&M can not be innate. Why should any of the acts or provisions remain illegal, unenforceable or be classified as a sickness?

In Ohio it is a criminal act for a stepparent to have sex with their stepchild, even one who is a consenting adult. This law has been upheld in federal court. If sexuality is innate how could anyone suggest such a law is enforceable?

No sexual desire is innate. Straight, gay or whatever. The desire to achieve an orgasm is innate. How we achieve that are preferences. We are no more born desiring a certain gender for a sexual partner than we are born hating spinach.

Rocks on May 29, 2009 at 1:31 AM

A lot of the commenters here don’t like the gay/race comparison because you can choose to be openly homosexual but have no choice in determining your skin color. The problem with this argument vis-a-vis the Loving v. Virginia analogy is that you CAN choose whether you form a inter-racial couple or not. No one forced you to get involved with someone outside your race.

SDnocoen on May 29, 2009 at 1:33 AM

The whole interracial marriage bit is almost eerie to think about. Reading arguments used against it, it boggles my mind that anyone could think that way. It’s beginning to boggle young minds how anyone could see gay people that way. It doesn’t matter what clever arguments we come up with today, a young conservative is more likely than an old liberal to be pro-gay marriage. its only a matter of time.

ernesto on May 28, 2009 at 8:32 PM

Many opponents of interracial marriage have used the Bible to underscore their arguments. Apparently they don’t read the book very closely. Moses had only one wife–Zipporah–and she was black. And when Moses’s sister Miriam started talking smack about the fact that Zipporah was a Cushite, God smote Miriam with leprosy.

On the other hand, sodomy is condemned without reservation in both the Old and New Testaments. Just saying.

Defining marriage as between a man and a woman of the same race doesn’t discriminate against minorities, period.

Proud Rino on May 28, 2009 at 11:58 PM

The laws against interracial marriage were always about white supremacy and sexual jealousy. Additionally, unlike most laws, they were pulled out of thin air (like the oxymoron ‘same-sex marriage’) and were never based on the another foundational law. The proverbial emanations from penumbras, or whatever.

baldilocks on May 29, 2009 at 1:37 AM

A lot of the commenters here don’t like the gay/race comparison because you can choose to be openly homosexual but have no choice in determining your skin color. The problem with this argument vis-a-vis the Loving v. Virginia analogy is that you CAN choose whether you form a inter-racial couple or not. No one forced you to get involved with someone outside your race.

SDnocoen on May 29, 2009 at 1:33 AM

On that basis it is legal to stop any marriage between any man and any woman for any reason.

baldilocks on May 29, 2009 at 1:40 AM

baldilocks on May 29, 2009 at 1:37 AM

I’ve got two links for you bud.

“”Almighty God created the races … and he placed them on separate continents… The fact that he separated the races shows that he did not intend for the races to mix.”
http://en.wikipedia.org/wiki/Loving_v._Virginia#Facts

What the Bible really says about homosexuality

SDnocoen on May 29, 2009 at 1:44 AM

baldilocks on May 29, 2009 at 1:40 AM

Yeah. Kinda twisted isn’t it?

SDnocoen on May 29, 2009 at 1:46 AM

Sodomy is a religion.

Because it is a religion, its precepts (or lack thereof) cannot be questioned or determined by the legal system.

The First Amendment prohibits government providing any benefits to sodomists. This includes laws protecting them.

They are free to practice their religion in their own churches. They are free to operate their own religious schools, paid for by their own funds.

They cannot force anyone else to do anything other than permit them to practice their religion.

Now just why do you suppose they don’t admit that sodomism is a religion?

platypus on May 29, 2009 at 1:56 AM

baldilocks on May 29, 2009 at 1:37 AM

While I agree that the bible does not proscribe interracial marriage the idea that Zipporah was “black” is highly debatable.

In any case it’s irrelevant to the argument. Interracial marriage was MADE illegal based on race, an immutable characteristic. What was legal for a man and a woman prior to these laws was now illegal for a man and a woman afterwords simply because their races were different. That is the essence of discrimination. Same-sex unions have never been considered as marriage or even recognized and are not made illegal by stating they are not marriage. There is no reason whatsoever for the state to be forced to use the word marriage or apply marriage laws to a same sex union as sexuality is not an immutable characteristic.
If it were you wouldn’t have so many middle aged women who suddenly discover they are lesbian soon after being dumped by the husband for a thin 23 year old. If it were how could there even be such a thing as a bisexual?

Rocks on May 29, 2009 at 2:11 AM

Black people are slaves.

Women aren’t allowed to vote.

Proud Rino on May 28, 2009 at 8:10 PM

And to think, you can’t figure out why black people REALLY aren’t on your side with this.

Equating slavery and the civil rights movement to the fight for gay “rights”….how’s that working out?

Hawkins1701 on May 29, 2009 at 2:11 AM

If you can’t ‘discriminate’ based on gender, how can you discriminate based on number? Why is polygamy illegal, then? Especially when it has far religious and historical precedences that gay marriage does not?

This is a reason the justices don’t want to hear this one. You can’t rule for one without the other. Not without the same kind of twisted judicial political correctness logic that made a single elective medical procedure a constitutional right over all other medical procedures (Roe v. Wade).

michaelo on May 29, 2009 at 7:04 AM

Phil Byler on May 28, 2009 at 10:50 PM

+1

And to the poster who said that polygamy had no historic basis, that is factually incorrect. Right up to the present day. You need to hit the net and research it. Not only do some engage in that in the US, but other countries as well.

dogsoldier on May 29, 2009 at 7:17 AM

And to think, you can’t figure out why black people REALLY aren’t on your side with this.

Equating slavery and the civil rights movement to the fight for gay “rights”….how’s that working out?

I didn’t equate them. I responded to people who say, “marriage is between a man and a woman, and that’s how it’s always been,” without providing any other rationale, by using a couple of examples of how things used to be one way but are no longer that way. I picked two examples where I think 99.9% of people would probably agree are bad traditions.

That’s not to say that gay marriage is morally right or a greater injustice than slavery, it just means that it’s not necessarily morally wrong because it’s been “One man and one woman” for a long time, it must therefore *always* be one man and one woman.

Proud Rino on May 29, 2009 at 7:53 AM

That’s not something I’m comfortable with but I’d rather have that then not allow homosexual couples who love each other other to have the same rights as a heterosexual couple.

Proud Rino on May 28, 2009 at 8:56 PM

That’s because your’re a bigot! You know that polygamists are treated just like black were.

Yeah, it sounds just that stupid when you say it.

gwelf on May 29, 2009 at 9:12 AM

In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry.

Crack open a dictionary, jackasses. There is no mention of race in Webster’s definition, but it does include “opposite sex” and “men and women.” You’d think lawyers would be fairly anal about the meaning of words.

We’re talking apples and oranges. That is, until the apple growers, fed up with getting less for their apples than oranges fetch, and find a sympathetic judge to declare that apple growers can declare their product oranges under the banner of equal treatment.

shuzilla on May 29, 2009 at 10:09 AM

In a nutshell, they want the Supremes to explain why the logic of Loving v. Virginia, which struck down laws forbidding people of different races to marry, doesn’t also apply to laws forbidding people of the same sex to marry.

Here’s the difference: With interracial marriage, there is an equal protection issue. If interracial marriage is forbidden, I as a white male play by different rules than a black male. He’s allowed to marry a black woman but I’m not. You don’t have the same issue with gay marriage. All men play by the same rule…they can marry any eligible woman they want..the problem is just that gay men don’t want to marry women. That’s understandable but still there’s no equal protection issue here. The problem is that SSM supporters are trying to change the very definition of marriage and redefine it as a group right rather than an individual right.

frank63 on May 29, 2009 at 10:21 AM

This acts are not illegal or unenforceable because they violate anyone’s rights. They are illegal because society deems them immoral or unhealthy. How can they be either if they are innate?

No sexual desire is innate. Straight, gay or whatever. The desire to achieve an orgasm is innate. How we achieve that are preferences. We are no more born desiring a certain gender for a sexual partner than we are born hating spinach.

Rocks on May 29, 2009 at 1:31 AM

Essentially, I’m libertarian regarding private behavior between consenting adults.

The difference between marriage and your examples come down to 2 issues. 1.) Is the right fundamental? 2.) Does the state have a compelling interest in restricting? The state doesn’t care much about S&M between consenting adults, but if someone ends up dead or crippled the other party isn’t going to be helped by showing a signed contract. The state usually doesn’t allow you to sign your fundamental right to life away–even assisted suicided is a gray area.

With regard to “no sexual desire is innate”. It seems like most guys are naturally aroused by women, especially young attractive women, and are more excited by the prospect of orgasm with the woman than by themselves.

dedalus on May 29, 2009 at 10:35 AM

That’s the most amazing use of pure unadulterated equivocation I’ve ever seen. Two women cannot marry. Two women cannot produce a child. Two women cannot create a father-mother-child relationship. It is simply not possible.

Everything that makes a marriage valuable to society is impossible to simulate with a same-sex “marriage.” And no, you being happy and fulfilled is not of any real value to society. If you need a pat on the head from the State in the form of a formal recognition of your lifestyle choice to be happy and fulfilled, you are a sick person.

spmat on May 29, 2009 at 10:48 AM

Everything that makes a marriage valuable to society is impossible to simulate with a same-sex “marriage.” And no, you being happy and fulfilled is not of any real value to society. If you need a pat on the head from the State in the form of a formal recognition of your lifestyle choice to be happy and fulfilled, you are a sick person.

spmat on May 29, 2009 at 10:48 AM

Can’t each of the gay women have children? Doesn’t that make them twice as fertile? Sure they need to get some sperm but it doesn’t seem in short supply or difficult to extract.

dedalus on May 29, 2009 at 10:59 AM

All men play by the same rule…they can marry any eligible woman they want..the problem is just that gay men don’t want to marry women. That’s understandable but still there’s no equal protection issue here.

Exactly. Pretty much any man, gay or straight, can marry any woman, gay or straight. That a person chooses to be with a person of the same sex, live alone or with pets is a choice – but by definition, that’s not marriage.

BTW, “love” is not in Webster’s definition of marriage either. Nor is “sexual intercourse.” The fact that two consenting adults love each other doesn’t qualify them for the institution of marriage.

shuzilla on May 29, 2009 at 11:11 AM

Conservatives need to get on top of this. If they want gay marriage give it to them, just make sure that churches are not compelled to carry out the ceremonies. The agenda is clear when you look at the New Hampshire law. They wouldn’t pass the law if churches couldn’t be compelled to marry gay couples.

kongzilla on May 29, 2009 at 12:30 PM

The difference between marriage and your examples come down to 2 issues. 1.) Is the right fundamental? 2.) Does the state have a compelling interest in restricting? The state doesn’t care much about S&M between consenting adults, but if someone ends up dead or crippled the other party isn’t going to be helped by showing a signed contract. The state usually doesn’t allow you to sign your fundamental right to life away–even assisted suicide is a gray area.

Marriage has no relation to the sexuality of the participants, innate or not, that’s the point.
1) Surely the right of consenting people to engage in a sex act is a fundamental right, most especially so if the desire for said sex act is innate. In all 3 examples I give this is true.
2) Well the state says they have a compelling health and moral interest in criminalizing these acts. But Lawrence vs Texas says that can be put aside even if the desire isn’t innate.

In the case of the necrophiliac the state of Nevada says it’s unlawful if any part of the his person or an object enters the “sexual orifices” of the dead body. But it perfectly legal for him to pay a mortician to do that in preparing the body for burial. Or pay a doctor to do that for the purposes of an autopsy. The only thing which makes the act illegal is that he does it and he finds it sexually gratifying. If that desire is innate what justification of the state can ever truly override that?

In the case of the person who only gets off if he is abused there is clearly no intent to cause permanent injury or death. Refusing to have sex is clear grounds for an annulment which would void any prenuptial agreement as an annulment would have the effect that no nuptial ever took place. A woman is clearly aware that the man she is marrying considers her spanking him to be an integral part of sex act. If she then refuses to spank him is a judge compelled to void this marriage, and any prenuptial along with it, even though she is perfectly willing to have intercourse with him? If his desire for abuse was innate and she knew that wouldn’t a judge be compelled to say she refuses to consummate the marriage? A fetish for Erotic asphyxiation is considered a mental disorder even though there is no intent to commit suicide. A judge can and will commit a person who is shown to act on it repeatedly. If that desire is innate can it ever possibly be described as being disordered?

With regard to “no sexual desire is innate”. It seems like most guys are naturally aroused by women, especially young attractive women, and are more excited by the prospect of orgasm with the woman than by themselves.

dedalus on May 29, 2009 at 10:35 AM

Well, it seems that most people get hungry for chocolate, especially fine Belgian chocolate, and are more exited by the prospect of eating chocolate then worms. Would you say the desire for to eat chocolate is innate but the desire to eat worms not? Or is it just the desire to eat which is innate?

Rocks on May 29, 2009 at 2:36 PM

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