Monday, January 18, 2010

Same-Sex Marriage Case in California

In "An Odd Couple Defends Couples That Some (Oddly) Find Odd" in yesterday's New York Times, Maureen Dowd describes the intriguing lawyer-team of Ted Olsen and David Boies (former adversaries in the 2000 Bush v. Gore case), who are now arguing together against the constitutionality of California's Proposition 8 in the U.S. District Court in California.

“'Ted Olson and David Boies, so what are they up to?'” Dowd reports Olson mock querying, "summarizing the confusion and conspiracy theories that their union inspired.

"As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: 'We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.'

"Boies, wearing a flag pin on his lapel, said that the state of California is engaged in 'gay bashing.' He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: 'These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.'

"Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: 'Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.' ...

"'I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,' he said. 'We’re not treating them like Americans. We’re not treating them like citizens.'

"Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ....

"'I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,' Boies said. 'It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.'"

Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today's discrimination against same-sex marriage with similar disbelief.

Dowd continues: "The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience 'weakens our moral fiber in this country.'

"While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

"I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“'Damned right,' Boies snapped. 'I hope my Democratic president will catch up to my conservative Republican co-counsel.'

"Olson added: 'I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’

"Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about."