Unlikely Foes: Ted Olson Takes On Proposition 8

There’s an epic battle brewing on the Western front, and it’s going largely unnoticed. Theodore Olson, former Solicitor General under the second Bush administration and a staunch conservative and Federalist, along with David Boies have filed suit in the Northern District of California challenging Proposition 8 on, inter alia, equal protection grounds under the 14th amendment. Ted Olson and David Boies are titans in the legal industry. Interesting tid-bit: Ted Olson and David Boies were adversaries in Bush v. Gore, with Olson defending Bush and Boies defending Gore. They stand at the opposite ends of the political spectrum. Yet, they are standing together in the name of equal protection.

Proposition 8, by way of Strauss v. Horton, was upheld by the California Supreme Court a couple months ago, which resulted in the continued validity of 18,000 gay marriages that occurred prior to the decision but outlawed any further gay marriages. So currently, while 18,000 gay marriages remain valid, no others are permitted under California law. And the rub is that now you necessarily have inequality based on sexual orientation. Proponents for Prop 8, led by attorney Charles Cooper, another legal titan, will argue that because each individual still has the right to marry whoever they want, as long as marriage is between a man and a woman, there is no equal protection violation. Opponents of Prop 8, led by Olson and Boies, will equate a ban on gay marriage with a ban on interracial marriage, specifically pointing to Loving v. Virginia that struck down on equal protections grounds a Virgina law banning interracial marriages.

I part company with many conservatives and find Olson’s challenge to Proposition 8 compelling. I fully support it. Some conservative legal scholars, particularly those from the Alliance Defense Fund and the Liberty Counsel have argued that Loving v. Virginia is distinguishable with Proposition 8 because in Loving there was indeed discrimination based on a suspect class, namely, race, but that here, there is no such discrimination because sexual orientation is not a suspect class. In other words, the ban on interracial marriage treated people differently based on race, a fundamental trait, but that Proposition 8 does not because presumably sexual orientation is not a fundamental trait recognized by our laws. Another argument is based on federalist principles in that the people of California voted for a measure and therefore federal courts must respect the outcome.

Although I rarely part company with the ADF and Liberty, I must say both arguments are specious. The first argument is specious because there is necessarily unequal protection in California due to the ruling in Strauss v. Horton – you have 18,000 gay couples enjoying a fundamental right to marry (a right that is well established to be fundamental) while other gay couples are not enjoying the right beause they cannot under Strauss v. Horton. This presents an unequal instance that seems clearly violative of the 14th amendment equal protection guarantee. And if you accept that Proposition 8 is therefore unconstitutional, then it doesn’t matter if 99% of Californians voted for the measure, it must be struck down.

As the saying goes, you can’t have your cake and eat it too – gay marriage is either valid of invalid. If you say marriage is between a man and a woman, that is black letter law and thus must be enforced as such, which would necessarily mean that the existing 18,000 gay marriages must be invalidated as well. We are talking about a fundamental right here. But if you’re going to allow the 18,000 gay marriages to remain valid, then you are necessarily saying that those gay marriages are legally valid, which in turn means marriage can indeed be between same-sex couples, which then means Strauss v. Horton is unconstitutional on equal protection grounds. Again, under our Constitution, you can’t say the 18,000 gay couples can enjoy a fundamental right, but no other gay couple can. Undoubtedly, this presents a constitutional conflict ripe for the Supreme Court.

This case is surely going up all the way to the Supreme Court. The timing poses a risk for Olson and the gay community. The biggest risk is that the Supreme Court will take the opportunity to declare once and for all that marriage is strictly between a man and a woman, effectively acting as a federal amendment to the Constitution. Then, Olson and the gay community would be hoist by their own petard. This is outcome if very possible given the make-up of the Court presently.

Regardless of whether you have moral problems with homosexuality and gay marriage, I think everyone who respects our Constitution should really consider the merits of Olson’s case. In our nation, fundamental rights are provided to every citizen with equal vigor. We don’t say one person can enjoy a right but another cannot. Loving v. Virginia makes it clear that marriage is a fundamental right. Moreover, our founding fathers were explicit in their intent to protect the weak from the strong, to protect the minority from the majority, and is why our country is a Democratic Republic, as opposed to a full-fledged democracy. Just because the majority of a state (or even our nation) votes one way or another, if that vote violates equal protection in any way, that must be struck down. That is the job of the Judiciary, our third, and perhaps the most influential and powerful, branch of government.

One last point, whether you support Olson and his lawsuit against the current status quo in California boils down to this question: What’s more important to you, 14th amendment equal protection or stopping gay marriages in California? For me, it is unquestionnably the former. Olson’s lawsuit challenges the inequality that resulted from Strauss v. Horton. In order to correct this situation, Olson is hoping to reverse Strauss and allow gay marriages in California and in doing so must directly attack Prop 8. If, however, stopping gay marriage is more important to you, then you are willing to tolerate the clear equal protection violation we currently see in California and will side with the proponents of Prop 8. Even if you supported Proposition 8, you can still maintain your integrity: by supporting Olson, you are not necessarily supporting gay marriage, but rather you are supporting equal protection and claiming that either everyone deserves to enjoy a fundamental right or no one does.

So my hat’s off to Ted Olson and David Boies. Godspeed.

American Confucius

SODOMITE RAMPAGE

Even though the people of the great States of California and Florida rejected gay marriage at the ballot box, militant homosexuals, continued their assault on society by staging coordinated attacks on radical right wing establishments (known to average Americans as churches) in California and Michigan. Even a little old granny was not immune to the wrath of the practitioners of buggery. Watch her get man-handled as one of the sodomites rips a cross out of her hand and stomps on it at an anti-Prop 8 rally in Palm Springs, CA.

It seems radical homosexuals feel quite brave when it comes to attacking churches. They make easy targets, given the Christian concept that when one is confronted with violence to “turn the other cheek.” (If there are any gay readers out there, that’s not what you think it means). Considering the punishment for homosexuals in Islamic societies is death – execution by all sorts of unique methods I must say – I invite these same militant homosexuals to express their rage inside a mosque. Or better yet, given the fact that at least 70% of blacks voted against gay marriage in California, go ahead and push Aunt Esther around at a black church and see what happens.
We at RuckingFidiculous realize homosexuality is as old as time. And quite frankly, we don’t care what you do with your junk in private. However, Militant Homosexuality is a relatively new phenomenon. It is a phenomenon that aggressively manifests itself when a nation is in precipitous decline. Just like certain diseases thrive in filth, it’s only when a society has begun to rot from within that Militant Homosexuality can find conditions favorable enough to subject society to the full force of its intolerance and depravity. Militant homosexuals are the shock troops of the secular progressive movement; it’s only a matter of time before the General of this movement, Sheik Hussein Obama and his corrupt minions (activist judges) thwart the will of the people and overturn these pro-family amendments.

Post By El Sid

SODOMITE RAMPAGE

Even though the people of the great States of California and Florida rejected gay marriage at the ballot box, militant homosexuals, continued their assault on society by staging coordinated attacks on radical right wing establishments (known to average Americans as churches) in California and Michigan. Even a little old granny was not immune to the wrath of the practitioners of buggery. Watch her get man-handled as one of the sodomites rips a cross out of her hand and stomps on it at an anti-Prop 8 rally in Palm Springs, CA.

It seems radical homosexuals feel quite brave when it comes to attacking churches. They make easy targets, given the Christian concept that when one is confronted with violence to “turn the other cheek.” (If there are any gay readers out there, that’s not what you think it means). Considering the punishment for homosexuals in Islamic societies is death – execution by all sorts of unique methods I must say – I invite these same militant homosexuals to express their rage inside a mosque. Or better yet, given the fact that at least 70% of blacks voted against gay marriage in California, go ahead and push Aunt Esther around at a black church and see what happens.
We at RuckingFidiculous realize homosexuality is as old as time. And quite frankly, we don’t care what you do with your junk in private. However, Militant Homosexuality is a relatively new phenomenon. It is a phenomenon that aggressively manifests itself when a nation is in precipitous decline. Just like certain diseases thrive in filth, it’s only when a society has begun to rot from within that Militant Homosexuality can find conditions favorable enough to subject society to the full force of its intolerance and depravity. Militant homosexuals are the shock troops of the secular progressive movement; it’s only a matter of time before the General of this movement, Sheik Hussein Obama and his corrupt minions (activist judges) thwart the will of the people and overturn these pro-family amendments.

Post By El Sid

ATTENTION BLACK VOTERS: WELCOME TO THE REPUBLICAN PARTY!!

It appears the Democratic Party hasn’t congealed its constituents? The party has formulated an appearance of togetherness The Turtles would be proud of. Yet, it doesn’t appear that the words to their most famous hit mimic the Democratic Party after all. Black voters and Gay voters are arguably two of the biggest outspoken supporters. These groups were happily and generously displayed on TV in a homogenious manner. When it came to gaining the power of the Presidency, winning was impossible without cooperation. The homosexual lobby was fervently outspoken about civil rights pertaining to all groups. The Black darling
(Obama) overcame hurdles deemed unattainable by anybody other than a Whaite male. The umbrella of Civil Rights is believed to be that solely or in large part, to the Black community. As a Jew, I have seen the wavering appreciation of the Black population for the Jews that gave their lives in the darkest times of the movement. In fact, many Black groups preach undying hate and contempt for Jews without basis at all. (For older folks look to Malcolm X and Jesse Jackson. To younger minds and the uneducated, look to all leaders of the Black Liberation Ideology.)
The public has seen a display of unrest by the Homosexual population across the country towards any groups associated with resistance to Gay marriage. Yesterday on Fox, the Gay activists have decided to execute boycotts and demonstrations against any opposition parties. Displays in front of Churches and Synagogues have erupted. Businesses that have been directly or indirectly linked to opposing views have been “Scarlett Letter”(ed).
It appears to be a well orchestrated campaign to drum up support for long term resistance until passage of Gay Marriage is achieved. Is the campaign malaligned? ABSOLUTELY.
Black voters do not equate the Civil Rights movement to the Gay Marriage movement. It has become much too personal for them. The Gay voters obviously see them as exactly the same. It has even been called the Civil Rights Movement of the 21st century. By supporting the Black candidate, the Gays now feel betrayed by the Blacks as evidenced by their total and utter surprise when the agenda was completely crushed by a landslide vote. The landslide could directly be attributed to the overwhelming +70% Black vote against it.
Boycotts and protests in front of businesses and institutions that have never voter differently in the matter is an off-tangential approach. A normal pursuit would be conducted towards their own people who have deliberately strayed from support. Black churches, in particular, should have been (and now should be) the first to feel the bitterness. Mosques should be targeted and are strangely ignored. The Black Moslems have crossed a two-fold agenda in taking issue.
Where would the protests be targeted to make the most noise? Where is the debt of gratitude owed mostly to the Gay vote? Where would the action be most effective in getting this issue on the forefront of society, in the open, and on the front pages of every news media in the world? ……….If you haven’t come to the conclusion yet, the answer is Obama!! The inauguration would be the best time create the circus needed for a national “town meeting.”
Where is Hollywood? Where are the musicians? (silence…) Where are the Gay politicians that have been outcast from office in disgrace because of “closet” issues? (crickets….chirp…chirp..) Where are the Civil Rights leaders? Where is Obama? Where is Oprah, Maury, The View (Ugh!), and Ellen? Is anyone going to volunteer to leave the country if the agenda isn’t passed” like Alec Baldwin said when he was referring to the Republicans? Who will put their ASS on the line? Strangely silent.
How I feel about the matter is not the motivation for this article. How this administration works as it inches closer to starting is puzzling and important to me! Direct the movement appropriately. I am anxious to see what music should have been played at the DNC. Does one pick David Bowie “Ch- Ch- Ch- Changes?” Or Led zeppelin’s “The Song Remains The Same?” Or The Turtles “Happy Together?” I know what I would pick!

A Constitutional Right to Gay Marriage? A Foolish Delusion Indeed

As my opening salvo I have decided to rant about today’s big news from good ‘ole California. Let me preface by saying that I do not take moral or personal issue with gay marriage here. As Senator Goldwater himself said, “there is no gay exemption to the right to life, liberty, and the pursuit of happiness.” Instead, I lament the legal implications of judicial activism.

In my first year constitutional law class, our professor quipped as a matter of factly that when we as law students consider who to vote for in the next presidential election a primary consideration will be the candidate’s judicial philosophy and his promise to appoint judges who embrace a particular school of judicial interpretation. The class erupted in sarcastic laughter, as in “No we won’t. Who cares? Remember? It’s the economy stupid.”

Obviously, it was early in the semester and many classmates, myself not included, had not yet realized how influential the U.S. Supreme Court’s opinions are on society. The Court’s primary (and only) role is to interpret the U.S. Constitution and say what the “law of the land” is. By setting the legal boundaries to which all states must comply, the Court, by way of its opinions, directs, and in certain instances, molds the public’s sense of morality. It can be successfully argued, however, that the process is reverse – that the Court adjudicates according to the changing winds of the public square. This argument is certainly not unfounded.

The California Supreme Court opinion in In Re Marriage Cases, published today, exemplifies one extreme of the judicial interpretation spectrum: Developmentalism, or as conservatives rightly call it, judicial activism. Judicial activists believe in a “living, breathing Constitution,” one that “evolves with the times.” However, there’s a twist here. Did the Court really adjudicate according to California’s changing perception toward same-sex marriage? I think not.

The Court did two things mainly. It created a new constitutional right to same-sex marriage violating the legal notions of stare decisis. Most damagingly, however, it “short-circuited the democratic deliberation that is the most reliable method of deciding questions of competing values.”

The precedent upon which the court in California was bound is unambiguous. According to Glucksberg, the seminal U.S. Supreme Court case dealing with constitutional rights, a two-step analysis must be used to determine whether an asserted right or liberty interest is fundamental. First, the court looks at the “careful description” of the asserted fundamental interest. Then the court examines whether that interest is “deeply rooted” in the American legal tradition. The second prong is admittedly a high standard, arguably insurmountable. If a party asserts a “new” right, then, by definition, it really can’t be deeply rooted in the American legal tradition. It can be reasonably argued that the Court exhibited judicial restraint and purposefully created a high standard to discourage the wanton assertion of new rights.

There is nothing in our Constitution that provides for a right to same-sex marriage. Moreover, applying the second prong of the Glucksberg’s framework, any layperson unschooled in constitutional law knows enough to know that it is heterosexual marriage that is deeply rooted in American tradition, not same-sex marriage. To conclude otherwise would be a foolish delusion. Only one other state, Massachusetts, misguidedly recognizes a fundamental right to same-sex marriage. Applying this logic, a skeptic may argue then that our society would be static. No change, nor progress. Here, my discussion turns to the main thrust of my critique of In Re Marriage Cases.

We live in a republican democracy. According to the Tenth Amendment to the Constitution, the power to create a new fundamental right not provided for in the Constitution lies with the people of each and every state. In 1977, the California state legislature banned same-sex marriage. In 2000, Californians voted to maintain marriage as a civil union between a man and a woman (although, since then, a marriage and a civil union, in terms of legal benefits, have become nearly identical, leaving the issue to a mere semantic difference). Notwithstanding this clear mandate, the California Supreme Court today struck down the state laws and ruled that the right to same-sex marriage was fundamental, ergo, constitutional. The Court exhibited the worst kind of judicial activism. It not only legislated from the bench, but it legislated against the desires of the people.

It is certainly possible that the public’s perception has changed since 2000. It is possible also that if the same referendum was held today, the outcome would be different from that of 2000. But the troubling point is that the California Supreme Court usurped the law-making power of the legislature, and by doing so, violated the separation of powers and ran roughshod over the constitutional right to a republican form of government of 36 million Californians. The question going forward is whether this case makes it up to the U.S. Supreme Court. If it does, how will that Court rule? The clear danger is that it will end up as Roe v. Wade part duex, another monstrosity in the corpus juris.