Prop 8. Now what? The US Supreme Court?

The next chapter in our inexorable march to equality involves the most unlikely of characters. Ted Olson. No, that is not a typo. I don't mean Jimmy Olson (cub reporter for Daily Planet), Mary Kate and Ashley Olson (not sure what to even write here to describe them...)

Allow me to explain. Ted Olson stood before the United States Supreme Court in 2000 and argued that George Bush should be elected President. That is Ted Olson. Ted Olson was on George Bush's short list for Attorney General but Bush knew he wouldn't survive the confirmation hearings. Too conservative. Think about that. In the Bush administration. Too conservative.

That Ted Olson has stepped forward in the first project of the American Foundation for Equal Rights. and will represent two gay couples in a federal challenge to the Proposition 8 ruling handed down by the California Supreme Court yesterday. He will join forces with David Boies. Mr. Boies represented Al Gore in that very same Supreme Court case in 2000. Strange bedfellows indeed.

That Ted Olson said this yesterday:

It is our position in this case that Proposition 8, as upheld by the California Supreme Court, denies federal constitutional rights under the equal protection and due process clauses of the constitution," Olson said. "The constitution protects individuals' basic rights that cannot be taken away by a vote. If the people of California had voted to ban interracial marriage, it would have been the responsibility of the courts to say that they cannot do that under the constitution. We believe that denying individuals in this category the right to lasting, loving relationships through marriage is a denial to them, on an impermissible basis, of the rights that the rest of us enjoy...I also personally believe that it is wrong for us to continue to deny rights to individuals on the basis of their sexual orientation."

Take a minute and let that all sink in.

Now let's start firing the question out. I bet you will have some too.

Is this some kind of cruel joke? Are we looking at a wicked right wing conspiracy? Or has this man really traveled the kind of journey on this issue that we know many must travel in order to finally put to rest the real civil rights issue of our time. Is this the right time to move this case forward? Would the US Supreme Court agree to hear the case? I know that there is a long timetable for a case to wind it way to the Supreme Court - maybe the very best case would be two years? Is that too soon? And what about the makeup of the Court? Will more justices step down? Will the political makeup of the court change? Could the group and power dynamics of the court alter? Would that change work to our advantage? Or against us?

I'm just getting started.

So here's how i feel. I am scared to death and I have goosebumps. I am smart enough to know that if a marriage equality case comes before the United States Supreme Court, there is absolutely no margin for error. None whatsoever.

And yet, there are goosebumps. I know that a message is best received when the messenger embodies the message. So let's think about Ted Olson. As a full throttle conservative, he has chosen to stop standing in front of a pulpit when it comes to marriage equality. He has chosen to stand in front of the Constitution. The argument spoken by a man who embodies the message of a changing world could be the perfect combination.

As this unfolds, starting today with a press conference in Los Angeles, there will be vigorous debate within our community. Many folks will be panic-stricken. Many of us will have goosebumps.

I've got both covered.

Comments

[SR01]

What about SEPARATION OF CHURCH AND STATE in the same sex marriage debate?

IF one argues that marriage is only between a man & a woman, then THAT puts the U.S. GOVERNMENT IS IN THE BUSINESS OF ENDORSING A RELIGION THROUGH THE ACT OF ISSUING OF MARRIAGE LICENSES. Because if issuing licenses are nonreligious acts, as are granting business partnership licenses, driver licenses, etc., then the government has to issue marriage licenses to same sex partners. If the government refuses, then it is endorsing the dogma of various religions, which state that marriage is only between a man and a woman.

What if, for example, two individuals wanted to start a business together - would the government then issue a business partnership license to two straight individuals but only issue a business union to two gay individuals? And if the government, why would it discriminate and on what basis?

Confounding the debate is the confusion between the government issuing marriage licenses and churches performing marriage ceremonies. If the government issued same sex marriages licenses, that would NOT imply that any church must recognize it or perform the marriage ceremony. Marriage ceremonies are SEPARATE ACTS, have no legal power, and are simply celebrations with some form of blessing. And it’s the government, and not the church, that issues rights through licenses and must do so equally to all couples, without regard to any religious preference, faith or belief, including civil marriage licenses to same sex partners.

[K.J. Dwyer - Huffpost Blogger]

With regards to the state, marriage is, first and last, a civil contract. The proof of this is that when one seeks to dissolve a marriage, they don't go to their priest, minister or rabbi to get a divorce; they go to court.

The fundamental problem with marriage in the United States is that clergy are allowed to administer the civil contract of marriage. Yes, people have to obtain a marriage licence through the public sector, but practically any ordained "minister" can perform a legal marriage once that licence is obtained.

By giving the power of the state to the clergy to administer civil contracts, the United States has blurred the line between the Separation of Church and State and allowed religious bigotry to "define" what a marriage is.

If every citizen were required to stand in front of a judge to get legally married, the incoherent rants of religious bigots would be relegated to their proper, marginal place and this whole initiative to deny gay people the franchise of marriage would be a non-starter.

To that end, there should be a counter-initiative to deny the clergy the power to perform civil contracts. I'm sure such an initiative would lose at the ballot box, but it would highlight what is a fundamental flaw and inequity in the system and might make the religious think twice before denying others their civil rights.

[superstition]

Or the public can be educated about the 1st Amendment which clearly prohibits all forms of theocracy and therefore makes religious objections to same-sex marriage license dispensation at courthouses irrelevant.

The fact that two atheists can get married exposes religion-steeped false dilemma for what it is.

[bannorhill]

The First amendment says congress can NOT restrict the free practice of religion. Marriage has been one of the fundamental religious ceremonies for thousands and thousands of years for almost all faiths. Be it Buddhist, Jewish, Christian, or Hindu. Removing the right to have a marriage ceremony performed by a religious person clearly restricts the free practice of religion. Such a law would violate the First amendment.

[rharris513]

As I understand, this case would ONLY make the Supreme Court if the case is appealed after the District Court verdict and then after the Appellate Court verdict (and if the Supreme Court AGREES to hear the case.) Most likely the SF District Court will favor in support of the Plaintiffs (overturning the ban). At that point the defendents (please correct me if I'm wrong) would ONLY have the legal standing to appeal.

I heard that Governer Schwarzenegger and Attorney General Jerry Brown are names as defendents as executive of the state and enforcer of the law in question (I don't know if anyone else has). So if it is their decision NOT to appeal , the case ends, the Proposition is overturned, and LGBT equality groups need not fear the risk of this going before the Supreme Court. Given Jerry Brown and Governer Schwarzenegger already have publically come out AGAINST Pop 8 (Jerry Brown even officially represented the case against Prop 8 in the State Supreme Court hearings) it is likely they would NOT appeal.

So is that what the two attorneys meant when they said (paraphrased) "we know what we're doing?"

[Vinca]

I just want to say when the people VOTE on an issue, it should stand.

[superstition]

Yes. When people voted for slavery, it should stand. If people vote tomorrow to have a second Holocaust, that should stand.

Not.

[wereeverywhere]

The California proposition system is a mess. It's my understanding that originally it was progressives who started it- direct democracy, take it to the people. But it's transformed itself into a monster that habitually distorts the political process and uses coin operated signature gatherers to allow moneyed interests too often to get their way. It attacks labor and minority rights, and occasionally even our crummy budget process is worsened because of propositions.

[Awake-and-Sing]

And when they revote in 2010 or 2012 and vote to repeal Proposition 8 will you still feel that way?

[jockodog]

I enthusiastically read the Huff Post many times a day. Ultimately, I want to
it to speak truth to power, no matter it be Obama or Cheney. When someone like
Ted Olsen is willing to (on the face of it) be an advocate for the greater good, then
we should support his efforts with a healthy skepticism. I am afraid we are all doomed if
Obama acolytes are willing to ignore his support of indefinite detention and his FISA
vote, just because he's not Cheney. A crock of sh it is the same no matter who fills it.

[outnow]

If Ted Olson can set an important precedent under federal law, does he get awarded attorney fees? California law does award such fees. If this case could earn him fees for public interest work, then he stands to get wealthy. Plus, with the support of half the U.S. population, he could get fees even if he loses.

Many lawyers want cases where there are fees. I'm sure that Bush paid him well. A good lawyer can argue either side of a case. Few lawyers have the luxury of turning away cases just on principle alone. By supporting Bush in Bush v. Gore, I see no evidence of principle there. Then there is the fame and the come-to-God moment of a new tolerance for gay marriage that is growing worldwide. As with slavery and torture, there is a time to shift our attitudes, values and beliefs on many subjects. It isn't just Republican v. Democrat, at least not for lawyers. Jerry Spense defended the Amelda Marcos case.

[toxicbrainpoison]

yeah theres a reason lamda legal and the aclu arent fully behind this... the bowers court case in 86 kept homosexuality criminalized for almost 20 years.

[serena1313]

Goose bumps, chills, a shudder, "gut" feelings, etc... are physical sensations the body uses to communicate, validate, caution or warn us about someone or something. Only you can interpret what your body is telling you.

Perhaps your goose bumps have to do with the fact the SCOTUS Justices may not be "ready" to grant equal rights to the gay community. Based on their rulings, Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito are more protective of corporations and government than the victims rights and unconcerned with protecting our civil rights and liberties.

Take for instance:

"Justice Scalia's dissenting opinion in the 2003 Lawrence v. Texas case that struck down anti-sodomy laws laments the plight of those "protected" by laws criminalizing homosexuality. "Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home," Scalia wrote. "

Should Proposition 8 be decided by the Supreme Court, with a 5 to 4 majority vote, the chance of it being overturned is slim at best. My gut feeling says the timing is off.

Re_member the body never lies. The key is interpreting the message. You (generically speaking) are the only person who can do that.

Re_member, too, everything is temporary. Things change constantly. Sometimes not as soon as we'd like.

[weatherwaxx]

The makeup of the Supreme Court does not bode well for this issue. Just another geriatric right-winger trying to keep the US in the dark ages while Canada and Europe recognize that the old superstitions are just that.

The simple, sensible solution would be to make ALL unions 'civil unions' or 'domestic partnerships.' Let any two people applly for those -- and let those who want religious marriages make their own, private, NON-RELIGIOUS arrangements OUTSIDE the law.

Mixing religion and legal status is silly. If two Catholics marry in church, they may get a legal divorce and remarry - legally. As far as the law is concerned, the divorce is legal whether or not the church has dissolved their union (usually a matter of a suitable "donation.") This is just plain silly.

Get the law out of the 'marriage' business and get the churches out of people's bedrooms.

[superstition]

Your point is specious since marriage is already secular.

An atheist can marry a Buddhist at a courthouse without anyone batting an eye.

The involvement of religion in civil marriage is completely optional.

Read the 1st Amendment. It clearly states that we are have secular law. We are not a theocracy. There is no religion litmus test.

[AdamX]

I hope the scotus can explain the constitution to you, and help you understand why this is not an issue of rights. The lack of BENEFITS is an equality issue. The lack of MARRIAGE is not.

[weatherwaxx]

Loving v. Virginia. It is an issue of civil rights.

[rmax53]

For gay couples, the lack of BENEFITS awarded through MARRIAGE is the civil rights issue at hand.

As a gay man, I welcome the federal case. How many years will it take for all 50 states to recognize gay marriage if it's done one by one? I think a federal case has an excellent chance of winning, on the legal merits of equal protection and treatment under the law. There's no bending or creation of law, just equal application of current law. Even Scalia will be able to see that (http://www.boston.com/news/specials/gay_marriage/articles/2004/05/16/the_same_sex_marriage_argument_that_justice_scalia_fears/)

[PlaceboStudman]

The question here is one of semantics that I don't have an answer to. Is Mr Olsen a conservative, or a Republican? If he's a Republican in the vein of GWB/McCain et al, then Mr Olsen may be a wolf in sheep's clothing (as some here have already suggested)

However, if Mr Olsen is a true old school social conservative, then he may very well be more akin to a Libertarian than a Republican, and in that case, speaking as a Libertarian with many Libertarian friends who are all very pro marriage equality, maybe just maybe Mr Olsen might be the right man for the job.

I really wish that more people would take the time to learn the difference between a Republican and a Libertarian though...sheeesh

I'm tired of being called a hard headed closed minded Rethug, and a bleeding heart commie liberal for saying the same darn thing! LOL

[helen]

I want to give Olson a chance.
Libertarians (even Republican ones) love the Constitution.
It is their foundation for freedom and law. Not religion.
And that's the right way to proceed.
All are worthy of being loved.
No law that makes a difference on who can be loved and who can't, for consenting adults, is appropriate. Equal treatment requires exactly that.

[PlaceboStudman]

And that will be the question, will Mr Olsen stick to libertarian ideals or Republican ideals?

[dgscol]

They should not allow a revote on the same issue. IT costs money, for one thing, on a nonessential issue.
There is no reason to think the public sentiment has shifted in such a short time. They should pass a law that prevent a revote on essentially the same issue for at least five years.

Why more discussion about gay conversion? According to MAsters and Johnson and other studies many gays are open to conversion and seek help in resocialization. This should also be a gay issue - support for conversion. Possibly they could combine it with rehab for other things.

[Justice Wainwright]

Nonessential? The arrogance you portray is astounding. I think we are more than capable of deciding which rights we decide to be essential.

Why dont you put your money where your mouth is and revoke some of your own rights. At that point, feel free to come to us and discuss the validity of your right to freedom, liberty and the pursuit of happiness.

In my 28 years on this earth I have never met one gay or lesbian who was open to conversion and I have spoken to more gays and lesbians that freckles on my rear. The ONLY people who would ever feel so poorly about themselves, to the point of considering impossible conversion, are people who have been brainwashed by churches and society into thinking they are broken. THAT is the real crime.

You can not fix what is not broken.

Spend one year with nothing but gay men and woman of all walks of life, ONLY THEN, will you have the slightest idea of what we endure on a daily basis. Anything less is a waste of our time.

[helen]

Voting is NOT justice.
Don't mix the two.

[Jimmyboyo]

Dude

Masters and johnson have been debunked

Johnson has even debunked Masters and Johnson. She has admited that Masters never revealed any of his background tapes, files, data and only revealed his so called results.

LOL

Science = FULL OPEN submission of ALL data for peer review = same results = valid while differing results means mistake or fraud

NONE of the background data, files, tapes have ever been submited for peer review and johnson herself has now admited that Masters never showed even her any of the data only the so called reults paper

ROFLMAO

[Lemeritus]

Scientific American, 4/22/09:

"Most staffers never met any of the conversion cases during the study period of 1968 through 1977.... Clinic staffer Lynn Strenkofsky, who organized patient schedules during this period, says she never dealt with any conversion cases. Marshall and Peggy Shearer, perhaps the clinic's most experienced therapy team in the early 1970s, says they never treated homosexuals and heard virtually nothing about conversion therapy.

"When the clinic's top associate, Robert Kolodny, asked to see the files and to hear the tape-recordings of these 'storybook' cases, Masters refused to show them to him. Kolodn -- who had never seen any conversion cases himsel -- began to suspect some, if not all, of the conversion cases were not entirely true. When he pressed Masters, it became ever clearer to him that these were at best composite case studies made into single ideal narratives, and at worst they were fabricated."

[weatherwaxx]

If an amendment can be added by ballot, it should be subject to repeal by the same ballot. The Prop 8 proponents lied themselves sick to get that thing passed, and had it worded in such a way that its intention was ambiguous.

This issue is one of essential civil rights. Loving v. Virginia established that the right to marry the person of one's choice was an essential civil right in the United States of America.

Gay "conversion" is nothing more or less than torture. It's interesting how the right-wing extremists in this country who disguise themselves as "Christians" always seem to come down to endorsing torture. Perhaps it has something to do with internalized repression and self-loathing...

[Awake-and-Sing]

So this is your admission that when we put it back on the ballot in 2010 and 2012 we will repeal it, and that's why you are afraid of a revote.

We vote and revote on budgetary issues the whole time.

Don't think for a minute that the gay community is going to settle for less than full equality. We are no longer willing to be the doormats of society.

[superstition]

The following points must be made:

1) Homosexuality is a sexual orientation like heterosexuality.
1 a) Neither homosexuality or heterosexuality are disorders. This has been scientifically known since the 50s and a matter of consensus since the 70s.
1 b) Sexual behavior is not sexual orientation. A virgin has a sexual orientation.
1 c) Incest, bestiality, pedophilia, and the like are not sexual orientations. Aberrant sexual behaviors such as rape and child molestation are not sexual orientations.

2) Marriage is the social recognition of pair bonding, the strongest form of human intimate relationship. Recognizing same-sex pair bonds as we recognize opposite-sex pair bonds does not require the recognition of threesomes, foursomes, et cetera. The recognition of homosexuality as a sexual orientation does not require the recognition of threesomes, foursomes, et cetera due to the argument that bisexuality is a third orientation that requires the ability of a bisexual to marry one partner of each sex.

3) The 1st Amendment makes religious objections to the recognition that gay Americans must be afforded the same rights as hetero Americans irrelevant.

4) The 14th Amendment clearly says "no state" may rescind equal rights.

The combination of the recognition that there are two types of pair bond, same-sex and opposite-sex due to the existence of two solidly known sexual orientations (bisexuality is debatable and irrelevant since we're talking about pair bonding when we're talking about marriage), and the 1st/14th amendments makes it impossible to rationally argue for heterosexism.

[Trusty72]

I agree with you for all but 2). Marriage is not about sexual orientation, its (new, post-heterosexist) purpose is about providing recognition and benefits for all cases in which a person loves and is committed to another person and wishes to have that relationship affirmed and privileged. Sexual orientation and gender are no longer relevant.

So what should we do about the situation in which a man, let us say already married to another woman, meets a second woman with which he has an equally strong "pair-bonding" experience, in your words (it certainly happens often and is not "aberrant")? Let us also imagine his wife is particularly open-minded and does not object to this relationship. On what grounds would we deny this man the right to marry the second woman? Would it be "monagamist" to do so, or is there some other more rational basis on which we could object?

[MamaBird62]

The old polygamy slippery slope argument, long debunked. The marriage contract is between two people, of the age required by law, and not related as required by law, and not married to another person at the time they enter the contract. The marriage contract is designed for 2, no more. The rights and responsibilities described in the contract are between two. And interestingly, it works perfectly well for a same sex couple, with no changes.
So the whole marrying kids, a group of 12, dogs, rocks, etc thing is just silly.

[Trusty72]

MamaBird: who determines that the marriage contract is between two people only, and on what basis? You just announced that fact with no explanation. Saying it's "long debunked" does not count as a refutation, especially when this is a hot button issue in Canada at this very moment.

Actually, I'm not even sure about the relationship provisions either. What if two gay brothers want to marry? Weird, I know, but on what grounds could we object? Or a brother and sister who promise not to have biological kids?

The age restrictions are pretty arbitrary, too, but I'm more comfortable with those, since we have them for a lot of other rights and privileges. It's an issue of being mature enough to consent. The dogs and rocks stuff is just plain silly.

[Kai Cross]

On what grounds do we deny a polygamous marriage? Simple. As "superstition" wrote, it's about PAIR bonding. 3 or more do not make a pair.

[superstition]

Scalia/Thomas Lawrence dissent:

I turn to ... equal-protection challenge, which no Member of the Court save Justice O’Connor embraces... This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.

O’Connor argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor: “...It is instead directed toward gay persons as a class.”

But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.

If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution,”?

[superstition]

They didn't understand what sexual orientation is and argue racism is wrong but heterosexism isn't:

"A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race.

Even if the Texas law does deny equal protection to 'homosexuals as a class,' that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality.

Many Americans do not want persons who openly engage in homosexual conduct as...

----

They wrongly transform sexual orientation into sexual behavior, and cast it as disordered:

"...partners in their business, as scoutmasters..., as teachers..., or as boarders.... They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive."

State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

The impossibility of distinguishing homosexuality from other traditional 'morals' offenses...

States continue to prosecute all sorts of crimes by adults 'in matters pertaining to sex': prostitution, adult incest, adultery, obscenity, and child pornography."

----

"Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry."