Monday, August 9, 2010

David Boies on California same-sex marriage ruling: "We put fear and prejudice on trial, and fear and prejudice lost"

Posted By on Mon, Aug 9, 2010 at 7:42 AM

click to enlarge TedOlson

Last week a federal judge in California struck down the state's ban on same-sex marriage, ruling that voter-approved Proposition 8 violates the U.S. Constitution — handing supporters of gay rights a major victory, at least in the short term.

The legal odd couple who was successful in the California case, the liberal David Boies and conservative heavyweight Ted Olson, appeared on separate Sunday morning talk shows to discuss what actually happened in the courtroom and in Judge Vaughn Walker's decision, and what will happen going forward.

The more interesting parrying occurred on Fox News Sunday, where Chris Wallace asked what he said he's been asked and no doubt has been a source of discussions in conservative circles over the past year — why is the famously conservative Olson, who won against Boies in the memorable Bush v. Gore decision that decided the 2000 presidential election, fighting for the rights of same-sex couples?

'We believe that a conservative value is stable relationships and stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage," said Olson.

Earlier in the discussion, Wallace pushed hard on the fact that Judge Walker's decision had in essence invalidated the votes of the 7 million Californians who voted for Prop 8 in November of 2008.  But Olson, the former Solicitor General for George W. Bush, said the Supreme Court has ruled that marriage was a fundamental right and pointed out that the Constitution made no explicit mention of interracial marriage, to answer Wallace's question about where it mentioned the right to same-sex marriage:

OLSON: Well, would you like your right to free speech? Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the Constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.

Olson was so convincing that the exchange ended with Wallace conceding that Olson had met every one of his questions with an effective response, saying, "And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the Supreme Court, sir."

A little more combative and familiar set of exchanges occurred on the set of CBS' Face The Nation, where guest host John Dickerson spoke with Olson's partner on the Prop 8 case, David Boies, and Christian conservative Tony Perkins, representing the Family Research Council and the anti-gay marriage brigade.

But after Perkins opined on why he thought the legal decision was wrongly decided (and making sure to note a news report that Judge Walker himself is gay — by the way, could Boies have argued if he lost about the judge if he was straight?).

"What you have is one judge, and a district-level judge, and an openly homosexual judge at that, who says he knows better than not only seven million voters in the state of California, but voters in 30 states across the nation that have passed marriage amendments," Perkins said.

But Boies, also considered one of the finest attorneys in the country (ask Bill Gates), didn't feel like getting into a tit-for tat with Perkins, and said they were talking about the law, not one's feelings about it:

"It's easy to sit around and throw around opinions and appeal to people's fear and prejudice, and cite studies that either don't exist or don't say what you say they do," he said. "In a court of law, you've got to come in and you've got to support those opinions. You've got to stand up, under oath and cross-examination... And when they come into court and have to defend those opinions, those opinions just melt away. And that's what happened here. There simply was no evidence or studies. That's just made up. It's junk science. And it's easy to say on television. But we put fear and prejudice on trial, and fear and prejudice lost."

Interestingly, though many observers (including this one) wrote last week that the case will ultimately be resolved by the U.S. Supreme Court, an essay written by a law professor at UC-Davis in Sunday's San Francisco Chronicle says, not so fast.

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