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Friday, August 07, 2009

Stange Bedfellows and the Politics of Human Sexuality

This is Ted Olson and David Boies.

Olson is a Conservative attorney.

Boies is a liberal attorney.

They were last seen arguing against each other before the Supreme Court in Bush v. Gore.

Guess what they are up to now?

They have joined forces to file a lawsuit opposing California’s ban on gay marriage.

Yes, way.

In a recent op-ed piece, "Gay Marriage and the Constitution: Why Ted Olson and I are working to overturn California's Proposition 8," in the Wall Street Journal, Boies asserts:

We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

Well, it's about time, don't you think? I know. I said that yesterday when Sonia Sotomayer's appointment to the Supreme Court was finally confirmed.

I suppose I should be happy with the fact that truth, eventually, wins. That the arc of history is long, as Martin Luther King, Jr. once said, but it always bends toward justice.

I'm sorry, but I'm finding myself mildly annoyed. I mean, if it's obvious to opposing lawyers in the conservative and liberal camps, then why did Prop 8 pass in the first place? What is taking so damn long?

Boies wrote:
The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

And -
There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

I suppose we're seeing the effects of the 'dummying down' of this country. Everything in the news is broken down into 'soundbites'. It's the Nightly News as Sesame Street. Even the NBC "In Depth" section is not about an analysis of a significant piece of news, but a feel-good story that would never make the headlines.

Do we keep ourselves so busy that we don't have time to think critically and reflect thoughtfully? I mean, when was the last time you read an entire article - all the way through - in the New York Times or the Washington Post?

Right. Me neither. Not often on the day that it gets printed, but I do make the attempt to pick up the article online before I go to bed or later in the week. For example, this article in the WSJ was published July 20th.

And, here's the thing: Op ed pieces or lengthy articles in newspapers and magazines are not exactly filled with analysis intended to enlighten the mind. They are designed, primarily, to sell papers.

Ultimately, we're left with arguments that can be reduced to a 10 second sound bite or words that can fit on a bumper sticker.

You know, like "Abortion kills."

"If guns are outlawed only outlaws will have guns."

"Marriage is between a man and a woman."

This is pretty much how important issues are argued: On bumper stickers. How ridiculous - how insulting - is that?

The problem is that a slogan is no substitute for careful analysis of the law. As Boies asserts in his article, "Law is about justice, not bumper stickers."

Which leaves me mildly annoyed but hopeful. All in all, not a bad place to be.

If the argument reaches the Supreme Court, now with Sotomayer sitting on the bench, I have no doubt that the freedoms guaranteed in the Constitution will be enacted for all - ALL - the people of this land.

Reaching out to such conservatives is essential for the progressive movement to build broad coalitions and win the policy changes that will make this world a more humane, egalitarian, and free place. If Ted Olson wants to join liberals on the gay marriage issue, that’s certainly better than if he doesn’t.

Politics, it has been said, is about the pursuit of the possible. This is not an impossible goal.

Politics is also said to be about choice. Will it be a politics of tolerance, of compassion, of truth, of empowerment? Or will it be a politics of bigotry, of imposition, of imperialism in all of its protean guises?

These are the questions of politics today. I thank God that we finally have a cultural climate in which these questions can be asked.

Beyond my mild annoyance and impatience, I am deeply grateful that we are finally asking questions and having these discussions publicly.

Perhaps it is precisely "strange bedfellows" who will help us, finally, navigate through the politics of human sexuality.


marnanel said...

It's nice to see some signs of hope.

I think I may get a bumper sticker saying "Law is about justice, not bumper stickers." :)

Matthew said...

Keep in mind, however, that most of the major LGBT rights groups are very troubled by this lawsuit and by what Olson and Boies are doing in the first place. I wont go into that here because the battles over this strategy have played out on lots of other blogs, but suffice it to say that many in the lgbt rights camp are not pleased with the strategy of Olson/Boies.

IT said...

Some issues, here, Elizabeth.

THe Supreme Court of California has held that it is legal to have a Prop8. The argument was made on the legality of the proposition, because the opponents explicitly did NOT want there to be a "Federal option" of argument. So they argued under a narrow point of California Constitutional law, and did not involke the UK Constitution.

The suit Boies and Olson have filed is explicitly federal. It will be (indeed has started to be) argued in the Federal courts. SCoCal has nothing to do with it.

It will meander its way through the federal system and possibly (but not necessarily) be taken in the end by the SCOTUS. Remember SCOTUS doesn't HAVE to take a case.

Also remember that SCOTUS is extremely conservative and you can absolutely COUNT on Scalia, Thomas, Alito, and Roberts voting hard against any gay marriage. They are all pretty young and healthy and they are the poison pill on the court. Obama and Sotomajor have not changed ANYTHING about the conservative Roberts court.

The reason the gay advocacy groups have avoided the Federal courts is that a setback by SCOTUS could have long-term negative reverberations because it is VERY rare and difficult for the court to overturn itself.

Plessy v. Ferguson in 1896 established the concept of separate but equal. Even in 1950s, when Brown v Board of Education was argued, WM Rehnquist (then a clerk) argued ""To the argument… that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are."

Olson and Boies are doing the right thing in a social justice context. But it is a dangerous game and has the potential to backfire seriously. Indeed, if they found against gay marriage, I wonder if they could invalidate the ones that have already occurred.

IT said...

Eh, can't type....US Constitution.

Wormwood's Doxy said...

I share the concerns of others about Olson and Boies' strategy, but it *is* something of a watershed moment.

And I confess that I am very proud of the new bumper sticker I am about to put on my minivan:

The Episcopal Church Welcomes Absolutely Everyone!


Brother David said...

IT, please do not forget that Lawrence v TX was SCOTUS overturning its own decision of only 17 years standing, 1986's Bowers v Hardwick.

Those four old grumps do not make a majority on a 9 justice court! Kennedy, Ginsberg, Stevens and Breyer, still on the court, were of the majority in the B v H decision. Sotomayor makes five.

Elizabeth Kaeton said...

Clearly, this is a tricky strategy. May even be dangerous. I'm no lawyer, but I have been an activist most of my adult life and I must say, at the end of the day, this alliance leaves me hopeful - from a social justice context.

I deeply appreciate what IT is saying. Can someone send me some links to the writings of "most of the major LGBT rights groups" who are troubled by this lawsuit? I'd love to read more about the basis for their concerns.

Thank you all for your wonderful contributions to this discussion.

marla said...

Here is a cite from Lambda legal-

marla said...

Try this cite too:

And regarding why they would join together to fight this action, I suspect Olsen wants the free press which he could not afford to buy. But because it will get so much free press he and his law firm will do their best to win and make new law. After all, potential clients will notice his aggressiveness and gun slinging appearance. I may be to cynical; but, I've seen attorneys do it before to get potential future cases.