David Boies on Prop 8 ruling: We proved that same-sex marriage won’t hurt society

posted at 7:52 pm on August 4, 2010 by Allahpundit

Note well: He’s emphasizing the factual findings in the case here, not the ostensibly more important legal conclusions about due process and equal protection. That’s smart as a legal strategy insofar as the facts, not the law, are binding on the appellate courts that’ll hear this case, and it’s smart as a political strategy insofar as the average joe will likely be interested in the sociological testimony from the trial but not so much the tedium of due process analysis. If you’re going to use your limited time on camera to push gay marriage to the public, this is precisely the sort of thing you’d want to emphasize.

That said, while it’s no secret that I support gay marriage too, I think they’ve made a needless mistake in pushing this in the courts instead of doing it legislatively state-by-state. The optics are uniquely bad — a federal judge imperiously tossing out a public referendum enacted by citizens of one of the bluest states in America on the shoulders of a multi-racial coalition. If the goal of gay-rights activists is to make same-sex marriage palatable to the public, then embittering opponents by torpedoing a hard-fought democratic victory seems like … an odd way to go about it. The response to that will be that equality can’t wait, just as it couldn’t wait vis-a-vis school desegregation in the 1950s. Except that (a) no one, including gay-marriage supporters, seriously believes that the harm here is as egregious as the harm to blacks under Jim Crow, and (b) there was no assurance of a legislative solution to racial injustice in the 1950s the way there currently is for gay marriage. A strong majority already favors civil unions; as I noted earlier, opposition to same-sex marriage is in decline and down to 53 percent. When polled, young adults are invariably heavily in favor, guaranteeing that the legal posture on this issue will shift further over the next decade. The real effect of this decision, assuming it’s upheld on appeal, will be to let gay-marriage opponents claim that they were cheated in a debate that they were losing and bound to lose anyway. That’s what’s called a pyrrhic victory. Too bad.

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For religious folks, the lesson in all this is clear. There’s a lot more at stake in the battle over same-sex marriage than the marriage issue itself, important as that is. The very ability of religiously affiliated organizations to exist and operate is under threat. Same-sex marriage will be used as a tool, not only to silence opposition, but to unstring religion itself as a force in American life.

http://www.nationalreview.com/corner/122117/gay-marriage-v-religious-liberty/stanley-kurtz

right4life on August 5, 2010 at 9:31 PM

lexhamfox on August 5, 2010 at 9:25 PM

so are you a constitutional legal expert? if so, please refer me to your CV and some papers that would prove your expertise in this matter.

right4life on August 5, 2010 at 9:29 PM

I’m not an expert. I just asked you to specify how speech or religious freedoms are threatened.

lexhamfox on August 5, 2010 at 9:32 PM

You didn’t post the evidence. You article didn’t specify anything. I did not see your follow ups until I had already responded to your calling me ignorant.

lexhamfox on August 5, 2010 at 9:30 PM

you are ignorant, and you prove it with every post.

now post your proof that gay marriage is no threat to religious liberty and freedom of speech…your word means nothing to me.

right4life on August 5, 2010 at 9:32 PM

I’m not an expert. I just asked you to specify how speech or religious freedoms are threatened.

lexhamfox on August 5, 2010 at 9:32 PM

and its obvious you are fine with denying freedom to those who disagree with gay marriage.

we’ve already seen that the catholic charities in MA cannot provide adoptions anymore..a doctor in CA does not have religious liberty or free speech rights to deny artificial insemination to a lesbian…his rights are taken, because gay rights are more important than religious liberty or freedom of speech.

right4life on August 5, 2010 at 9:34 PM

lexhamfox on August 5, 2010 at 9:25 PM

He’s referring to the idea that once gay marriage is in place everywhere, anyone who argues against gay marriage will be considered to be engaging in hate speech. Institutions that do not want to teach or employ homosexuals will be sued and the suit will have a basis in equal protection jurisprudence. The entire idea of associational freedom will be impacted. Most pro-gay people don’t have a problem with outlawing discrimination against gays. But private associational rights do still exist, and come from the First Amendment just as much as the freedom of speech does. There is already some evidence that speaking out against gay marriage can be met with severe retribution. Considering that opposition to gay marriage is a tenet of a faith shared by many in this nation, such retribution could cause a huge amount of social unrest.

alwaysfiredup on August 5, 2010 at 9:36 PM

right4life on August 5, 2010 at 9:31 PM

Those issues already exist with or without gay marriage. Counselor’s have to deal with those issues the same way they handle issues with people of differing faiths anyway.

lexhamfox on August 5, 2010 at 9:36 PM

alwaysfiredup on August 5, 2010 at 9:36 PM

Thanks for the polite response.

You can be critical of marriages. I live in San Francisco and on most days there are one or two people holding up signs denouncing gays in the busiest part of town. I see it all the time. We see it with the nuts who protest at funerals for servicemen. That is hate speech by any definition wouldn’t you agree? They also come here to San Francisco.

lexhamfox on August 5, 2010 at 9:41 PM

Those issues already exist with or without gay marriage. Counselor’s have to deal with those issues the same way they handle issues with people of differing faiths anyway.

lexhamfox on August 5, 2010 at 9:36 PM

what are you talking about? counselors??? huh??

people are already losing their freedom because of the gay agenda…it will be far worse, a form of gay sharia law, when gay marriage is imposed upon us via the judiciary.

any speech, or action, that the gays disagree with, will be criminalized.

right4life on August 5, 2010 at 9:41 PM

right4life on August 5, 2010 at 9:41 PM

That was one of the examples cited in a link you provided. Marital counseling.

lexhamfox on August 5, 2010 at 9:42 PM

That is hate speech by any definition wouldn’t you agree? They also come here to San Francisco.

lexhamfox on August 5, 2010 at 9:41 PM

only liberals use the term ‘hate speech’

of course to people like you ‘hate speech’ should be criminalized….

and of course whatever you disagree with is ‘hate speech’

right4life on August 5, 2010 at 9:43 PM

That was one of the examples cited in a link you provided. Marital counseling.

lexhamfox on August 5, 2010 at 9:42 PM

you so misrepresented what was said that I didn’t recognize it…

So in states with same-sex marriage, religiously affiliated schools, adoption agencies, psychological clinics, social workers, marital counselors, etc. will be forced to choose between going out of business and violating their own deeply held beliefs.

right4life on August 5, 2010 at 9:45 PM

alwaysfiredup on August 5, 2010 at 9:36 PM

There are issues but they aren’t any different from the association issues related to different faiths. Correct me if I am wrong but it seems that we can deal with that friction without harming basic rights of faith and speech. We deal with that all the time.

lexhamfox on August 5, 2010 at 9:46 PM

so much for freedom…but its only the freedom of christians, so who cares?

do you think the gays will dare move against the muslims, and restrict their freedom of religion?? not a chance…

right4life on August 5, 2010 at 9:46 PM

Correct me if I am wrong but it seems that we can deal with that friction without harming basic rights of faith and speech. We deal with that all the time.

lexhamfox on August 5, 2010 at 9:46 PM

how? since none of the constitutional legal scholars can think of a way, perhaps you could enlighten us.

right4life on August 5, 2010 at 9:47 PM

right4life on August 5, 2010 at 9:43 PM

I don’t have a problem with hate speech. I’m for more speech rather than less. I don’t believe in hate crime either (before you get started on that too).

lexhamfox on August 5, 2010 at 9:48 PM

I disagree. We will have to see how it turns out. And I am quite serious here: I am having trouble finding any state constitutional provision invalidated by the federal constitution on due process or equal protection grounds…..

alwaysfiredup on August 5, 2010 at 8:29 PM

Loving v. Virginia

The court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Unfortunately, it took until 2000 for Alabama to remove the law from it’s Constitution. South Carolina removed it in 1998.

rukiddingme on August 5, 2010 at 9:50 PM

lexhamfox on August 5, 2010 at 9:41 PM

Sure, that is probably hate speech. I really do not support hate speech laws though. I think people ought to be able to criticize things they don’t like and practice what religion they want. If their religion tells them they must condemn homosexuality, I think they should be able to do so. But such public remarks will cause friction with other individuals and institutions that believe this is an expression of bigotry.

I believe it is becoming less and less socially acceptable in the US to condemn homosexuality, and this means (among other things) that it is becoming less socially acceptable to be a conservative catholic. Although I am not one, I can see why conservative catholics are unhappy about this.

alwaysfiredup on August 5, 2010 at 9:50 PM

rukiddingme on August 5, 2010 at 9:50 PM

I think that was a criminal statute not a state constitutional question in Va.

lexhamfox on August 5, 2010 at 9:52 PM

I don’t have a problem with hate speech. I’m for more speech rather than less. I don’t believe in hate crime either (before you get started on that too).

lexhamfox on August 5, 2010 at 9:48 PM

I will apologize for calling you ignorant…

its just that people say that all the time, and usually they have no interest in listening to anything that may refute it.

right4life on August 5, 2010 at 9:52 PM

But I’m no expert as right4life keeps insisting!!!

lexhamfox on August 5, 2010 at 9:53 PM

Loving v. Virginia

The court ruled that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

Unfortunately, it took until 2000 for Alabama to remove the law from it’s Constitution. South Carolina removed it in 1998.

rukiddingme on August 5, 2010 at 9:50 PM

You’re not attending to the nuance here: I’m referring to a state constitutional amendment, not a law. There is a definite difference in the way courts treat state statutes and state constitutional provisions, because laws are passed by a small number of elected representatives and constitutions are passed directly by the people.

alwaysfiredup on August 5, 2010 at 9:53 PM

alwaysfiredup on August 5, 2010 at 9:50 PM

I understand that. I don;t think Mel Gibson is a criminal for using the language he does or for the opinions he might have. He isn’t going to be charged for what he says or thinks. He probably won;t be as popular though but that is the risk with free speech. Popularity is not protected by the constitution.

I will apologize for calling you ignorant…

right4life on August 5, 2010 at 9:52 PM

Thanks. I hate the idea of thought crime.

lexhamfox on August 5, 2010 at 9:57 PM

rukiddingme on August 5, 2010 at 9:50 PM

Also, Loving was given a “strict scrutiny” standard that will not apply here because SCOTUS has said gay issues get only rational basis review. You’re better off looking for economic provisions instead of social provisions for precedent.

alwaysfiredup on August 5, 2010 at 9:58 PM

But the state can restrict rights, including the right to marry, based on specific criteria.

blink on August 5, 2010 at 7:59 PM

Yes. Courts may review those restrictions using strict scrutiny, intermediate scrutiny, or a rational basis test. Rights aren’t absolute, but there is a burden on government to show that the law is narrowly tailored to achieve an important purpose.

dedalus on August 5, 2010 at 10:00 PM

You’re not attending to the nuance here: I’m referring to a state constitutional amendment, not a law. There is a definite difference in the way courts treat state statutes and state constitutional provisions, because laws are passed by a small number of elected representatives and constitutions are passed directly by the people.

alwaysfiredup on August 5, 2010 at 9:53 PM

Apparently not, as I am no lawyer.

The second linked article indicates the law that was struck down by Loving, was written in each State’s constitution (passed directly by the people), and was not a separate statute (passed by the elected representatives).

That being said, I am not trying to argue or pick a fight. Just thought this was what you were looking for.

rukiddingme on August 5, 2010 at 10:15 PM

rukiddingme on August 5, 2010 at 10:15 PM

Ah. Thank you. I saw only the word “statute”. I will look closer.

alwaysfiredup on August 5, 2010 at 10:23 PM

It appears the statute struck down by Virginia was adopted in 1924 by the Virginia Assembly. I’m also finding Alabama’s was introduced into their statutory code in 1822 but not finding anything suggesting a constitutional amendment. The only constitutional amendments I’m finding are federal proposals that failed.

alwaysfiredup on August 5, 2010 at 10:37 PM

alwaysfiredup on August 5, 2010 at 10:37 PM

Respectfully,

Should you not be looking at Alabama and South Carolina, instead of Virginia, as it seems it took a vote of all the people in South Carolina (and Alabama) to remove the provision from each State’s Constitution?

rukiddingme on August 5, 2010 at 10:50 PM

a form of gay sharia law

right4life on August 5, 2010 at 9:41 PM

This never stops being funny. It’s like saying Christian atheism, or dry water.

Only problem? SaintOlaf did it far better back in the day, claiming that the gays were setting up concentration camps to exterminate straight people. The “pink helicopters” nuttery.

MadisonConservative on August 5, 2010 at 11:07 PM

Why don’t gay guys marry lesbians, like Obama and Michelle?

Solves everything.

profitsbeard on August 5, 2010 at 11:08 PM

I think that was a criminal statute not a state constitutional question in Va.

lexhamfox on August 5, 2010 at 9:52 PM

Loving did strike down the Virginia criminal statute. The second article that talks about Alabama and South Carolina says it also struck down at least two State’s Constitutional provisions.

Alabama removes ban on interracial marriage

MONTGOMERY, Ala. (AP) — Alabama voters on Tuesday repealed the state’s century-old ban against interracial marriage, an unenforceable but embarrassing throwback to the state’s segregationist past. The vote removed the dubious distinction of Alabama being the only state in the country with such a relic from the segregated South remaining in its constitution.

Emphasis mine.

rukiddingme on August 5, 2010 at 11:19 PM

right4life, serious question: are you a homosexual?

dakine on August 5, 2010 at 11:39 PM

rukiddingme on August 5, 2010 at 11:19 PM

My apologies. I did not see that. That somewhat allays the question, although Alabama’s constitution was not on trial in Loving.

alwaysfiredup on August 5, 2010 at 11:41 PM

rukiddingme on August 5, 2010 at 11:19 PM

http://www.usatoday.com/news/vote2000/al/main03.htm

has interesting info on the whole story. Only 62% of SC voters were for the removal in 1998 and some rural counties in Alabama actually voted it down.
For GIs married to a person of another race (any other race) and if assigned to the bases in the southern states they were warned not to go off base shopping together because people had been arrested under that law. It was struck down by the SC in 1967.

Bradky on August 5, 2010 at 11:42 PM

warned not to go off base shopping together because people had been arrested under that law.

Bradky on August 5, 2010 at 11:42 PM

Another great example of how laws failing to recognize gay marriage are substantively different from those against interracial marriage.

alwaysfiredup on August 5, 2010 at 11:57 PM

alwaysfiredup on August 5, 2010 at 11:41 PM

No apologies necessary. Even a blind squirrel (me) is capable of finding a nut.

I agree Alabama’s (and South Carolina’s) Constitution were not on trial, but the decision handed down by SCOTUS impacted them all the same.

What is interesting about the case is why it was necessary to vote on the provision at all if SCOTUS already deemed these provisions to be unconstitutional.

What is also interesting is why it took so long to remove the provision in the first place.

Bradky on August 5, 2010 at 11:42 PM

One would have thought that it would have been unanimous.

Another sign that some have not let go of their racism.

rukiddingme on August 6, 2010 at 12:01 AM

Another great example of how laws failing to recognize gay marriage are substantively different from those against interracial marriage.

alwaysfiredup on August 5, 2010 at 11:57 PM

I’m not so sure. Race based laws such as I mentioned make it pretty easy to pick out the “offenders”. And those couples could marry in other states and were not denied insurance, health benefits, and the like. And the SC weighed in almost 40 years ago. Since then 13% of all married couples are interracial and that number is likely to grow.
Today it is difficult for gay partners/couples to enjoy the same legal benefits in some states married couples enjoy. The other difference is that I don’t think there will be much of an increase in the number of gay unions if laws are passed to allow them.

Bradky on August 6, 2010 at 5:00 AM

I was just joking when I suggested “gay reparations.”

Looks like someone isn’t.

http://newsbusters.org/blogs/jeff-poor/2010/08/06/liberal-talk-show-host-thom-hartmann-says-it-s-time-gay-reparations

GT on August 6, 2010 at 8:46 AM

So, the case would come down to what is and what isn’t sufficient state interest. The standard for state interest is dynamic and changes along with social stigmas.

blink on August 6, 2010 at 1:01 AM

States have changed drinking, voting, driving, and consent laws for various reasons in the past. They may do so in the future regardless of what is done with gay marriage.

dedalus on August 6, 2010 at 8:52 AM

“We proved that same-sex marriage won’t hurt society” is a truism. They won’t propagate themselves.

MSGTAS on August 6, 2010 at 10:07 AM

I’m claiming that age of consent laws can be challenged and defeated in court. The challenge would likely hinge on state interest.

blink on August 6, 2010 at 10:02 AM

State interest is a criteria in many federal cases, and will continue to be regardless of the gay marriage outcome.

dedalus on August 6, 2010 at 10:25 AM

Oh by the way, could someone please send me a copy of the gay agenda? Apparently I was out of town or something when copies were handed out to all the gays.

mmnowakjr85 on August 6, 2010 at 10:43 AM

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