From the Archives: Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato

Publisher's note: This article was originally published on Examiner.com on May 18, 2011. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Attorneys Ted Olson, David Boies discuss Proposition 8 and gay marriage at Cato
May 18, 2011 2:40 PM MST

Two veteran Supreme Court litigators – former U.S. Solicitor General Theodore Olson and David Boies (twice named Lawyer of the Year by the National Law Journal) – spoke at the Cato Institute on May 18. Their topic was not the National Football League’s labor dispute, in which they are each representing opposing sides, but rather a case on which they serve on the same team.

In May 2009, Olson and Boies – who had earlier represented opposite sides in the U.S. Supreme Court’s 2000 presidential election case, Bush v. Gore – together filed suit in the state of California to challenge Proposition 8, a ballot measure from the previous November that prohibited same-sex marriage in that state. In August 2010, federal district judge Vaughn Walker ruled that Prop 8 was unconstitutional; its proponents have appealed the decision.

Observers immediately dubbed the two lawyers an “odd couple,” since it seemed unlikely, on its face, that a conservative Republican like Olson (who had served in the administrations of Ronald Reagan and George W. Bush) would join forces with a Democrat like Boies (who represented Al Gore and worked for the late Senator Edward Kennedy on Capitol Hill) to uphold the rights of gay and lesbian individuals to marry.


‘History of discrimination’

It became clear during the panel discussion at the Cato Institute that both Olson and Boies are equally passionate about this issue. Olson noted that the “history of discrimination [against gay people] is quite unpleasant to reflect on,” and that denying individuals the right to marry on the basis of sexual orientation is akin to granting a person all the rights and responsibilities of citizenship but, by dint of his nationality, denying him the right to call himself a citizen.

Ted Olson

He pointed out that in the pre-Civil War slave era, slaves were prohibited from marrying because marriage would be a symbol of their independence, and that when emancipation came, slaves rushed to be married because it was a way of asserting their new freedom.

Similarly, Boies asserted that “we all have an interest in protecting individual rights against government discrimination.” He pointed out that his clients and the proponents of Prop 8 both agree that marriage is a fundamental right that has been confirmed 14 times by the U.S. Supreme Court.

Boies said that depriving gay and lesbian citizens of the right to marry seriously harms them and the children they are raising. And, he pointed out, there is no benefit to other people from depriving gay men and lesbians of the right to marry.

After the panel discussion – which also included comments from former White House chief of staff John Podesta and Cato Institute chairman Robert Levy – Ted Olson spoke briefly with the Charlottesville Libertarian Examiner about the case, which was originally designated Perry v. Schwarzenegger but is now called Perry v. Brown because of the change in governors in California.


Overwhelming evidence

With regard to the prospects for the case, which is now stalled in the Ninth Circuit Court of Appeals while some peripheral matters are being litigated, Olson said, “We hope that we’ll get ultimately to the Supreme Court and have the Supreme Court affirm the rights of gay and lesbian individuals to be treated equally and with decency and dignity, not just in the state of California but everywhere else. The badge of discrimination that’s engraved in the California constitution has to be eliminated.”

He added that the most surprising thing he encountered during the trial was the power of his team’s case.

“We were overwhelmed by the strength of our own case,” Olson said.

“Just to listen to the expert witnesses and to hear the evidence was overwhelming,” he explained. “We had strong convictions about our arguments but the fact that the evidence was so compelling beyond our expectations was very gratifying.”

Boies and Olson predicted that a ruling from the Ninth Circuit will come late this year or in early 2012, and that if the U.S. Supreme Court chooses to hear a further appeal, the high court’s decision is not likely for at least two years.

From the Archives: Author Charles Murray argues same-sex marriage is ‘not a big deal’

Publisher's note: This article was originally published on Examiner.com on February 22, 2012. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site went dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Author Charles Murray argues same-sex marriage is ‘not a big deal’
February 22, 2012 8:15 PM MST

Appearing February 22 on “The Schilling Show,” a Charlottesville talk-radio program, conservative social scientist Charles Murray stated that the advocacy of gay marriage is “not a big deal” with regard to the general decline of marriage in American society. Murray also explained how his own attitude toward same-sex marriage has changed over time.

Murray, a scholar at the American Enterprise Institute in Washington is the author of What It Means to Be a Libertarian and the current release, Coming Apart: The State of White America, 1960-2010, which was the focus of the discussion with talk-show host Rob Schilling.


Collapse of an institution

In their on-air conversation, Murray noted that in 1960, for the age cohort from 30 to 49, the “white working class was married at well over 80 percent and the white upper-middle class was married at very high rates.” Fifty years later, however, among the white upper-middle class, “84 percent of those ages 30 to 49 are still married in 2010. In the white working class, that had dropped to 48 percent."

That, he said, is “essentially the collapse of a major social institution.”

Because married men and women are better able to participate in civil society – being Little League coaches, attending PTA meetings, running charity drives – Murray explained that “a breakdown of marriage” essentially becomes “a breakdown of community, and it’s focused on working class.”

Schilling asked Murray about the effect of the current debate over the definition of marriage, which differs from the cultural environment in 1960.

‘Not a big deal’

Murray replied that “the advent of the gay marriage movement and the rest of that, I’m inclined to think, is not a big deal.”

He pointed out that, “for one thing, a lot of the rhetoric surrounding the advocacy for gay marriage has been that here are people who want to make a solemn commitment to each other. Writers like Jonathan Rauch and others have made very compelling cases for [how] gays want to engage in this very important social institution.”

A person, he said, does not “have to agree with that to think that, in a way, the visibility of marriage has been raised by that movement, not necessarily denigrated.”

Calling in to “The Schilling Show,” the Charlottesville Libertarian Examiner posed a question to Murray about a recent appearance he made on the Charlie Rose television show. In that TV interview, Murray had said how his own opinion about same-sex marriage had changed.

Midway during the interview with Charlie Rose, he explained, the host asked him about that issue.


‘Loving, faithful relationships’

“I have never,” he said, “made a public statement about that before, but the fact is this: My wife and I have maybe half a dozen friends who are gay and are in couples. I mean they’re marriage-like situations. Some of them are guys and some of them are gals. In all of those cases, they’re acting like married people. They appear to have loving, faithful relationships that they take very seriously.”

More than that, he added, “a couple of them have kids that they are as attentive [to] and loving of as any other parents, and so I say to myself, I still have real problems with using the word marriage for anything except a union which has as its main purpose child-bearing and so forth.”

Still, he explained, “on the other hand, it’s really made me rethink the nature of my opposition, because let’s face it: Heterosexuals have made a mess out of marriage in the last couple of decades -- the last half-century, actually -- in ways which leave us in a weak position to suddenly say, ‘Oh, this wonderful institution that we’ve done so well with, you’re trying to interfere with.’”

As a result, Murray said, “I have backed off from leading the fight against gay marriage or even participating in it, and I’m willing to say that this is one instance in which [a new idea is] working out better than I would have expected it to, as I see it.”

From the Archives: Federal court strikes down Virginia same-sex marriage ban but stays order

Publisher's note: This article was originally published on Examiner.com on February 13, 2014. The Examiner.com publishing platform was discontinued July 1, 2016, and its web site was scheduled to go dark on or about July 10, 2016.  I am republishing this piece in an effort to preserve it and all my other contributions to Examiner.com since April 6, 2010. It is reposted here without most of the internal links that were in the original.

Federal court strikes down Virginia same-sex marriage ban but stays order

In a case that involves a confusing mix of plaintiffs, defendants, and ex-defendants who have taken the side of the plaintiffs, a federal judge late on the eve of Valentine's Day struck down both Virginia's statutes prohibiting same-sex marriage and a state constitutional amendment that does the same

“The Court is compelled to conclude that Virginia's Marriage Laws unconstitutionally deny Virginia's gay and lesbian citizens the fundamental freedom to choose to marry,” wrote Judge Arenda L. Wright Allen of the U.S. District Court for the Eastern District of Virginia in a 41-page opinion. “Government interests in perpetuating traditions, shielding state matters from federal interference, and favoring one model of parenting over others must yield to this country's cherished protections that ensure the exercise of the private choices of the individual citizen regarding love and family.”

In the case of Bostic v. Rainey, Wright Allen (nominated by President Barack Obama and confirmed unanimously by the U.S. Senate in 2011) granted the plaintiffs request for summary judgment and found that “Va. Const. Art. I, § 15-A, Va. Code §§ 20-45.2, 20-45.3, and any other Virginia law that bars same-sex marriage or prohibits Virginia's recognition of lawful same-sex marriages from other jurisdictions unconstitutional. These laws deny Plaintiffs their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution.”

At the same time, Wright Allen stayed her order pending review by the Fourth Circuit Court of Appeals, based in Richmond.

In strong language, Wright Allen stated that the Commonwealth of Virginia's defense of its same-sex marriage bans failed to meet even the very low legal hurdle of rational-basis analysis

“Virginia's Marriage Laws fail to display a rational relationship to a legitimate purpose,” she wrote, “and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. Accordingly, this Court need not address Plaintiffs' compelling arguments that the Laws should be subjected to heightened scrutiny."

If there are any “legitimate purposes” behind the same-sex marriage bans, she argued, they “share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia's gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.”

Wright Allen's ruling follows similar federal court decisions in Utah and Oklahoma (which are cited in her opinion) and, most recently, Kentucky.

Virginia Attorney General Mark Herring, who made national headlines in January when he refused to defend the marriage laws and instead presented a brief on behalf of the gay couples seeking to overturn the ban, issued a short statement in advance of holding a press conference on Friday morning:

In a press release, Herring said that the district court's decision "is a victory for the Constitution and for treating everyone equally under the law. It is the latest step in a journey towards equality for all Virginians, no matter who they are or whom they love.”

Acknowledging the court's stay of its order, Herring noted that the legal process “will continue to play out in the months to come, but this decision shows that Virginia, like America, is coming to a better place in recognizing that every Virginian deserves to be treated equally and fairly.”

Herring's news conference will take place at 11:45 a.m. on Friday, February 14, in the auditorium of the Pocahontas Building at 900 E. Main Street in Richmond.

SUGGESTED LINKS

Virginia Attorney General Mark Herring will challenge anti-gay marriage laws
Obama’s announcement prompts question, Is gay marriage a ‘new right’?
LP gubernatorial hopeful Robert Sarvis aims for marriage equality in Virginia
Libertarians praise Supreme Court's gay marriage ruling in DOMA case
Author David Lampo brings gay-rights message to conservative Republicans

Original URL:  http://www.examiner.com/article/federal-court-strikes-down-virginia-same-sex-marriage-ban-but-stays-order

Marriage equality and freedom of thought are not incompatible

Affirming their “unwavering commitment to civic and legal equality, including marriage equality,” a diverse group of activists, advocates, lawyers, writers, and others issued a statement today that also affirms their “our unwavering commitment to the values of the open society and to vigorous public debate—the values that have brought us to the brink of victory.“

The statement – prompted in part by the resignation of former Mozilla CEO Brendan Eich after his contribution to support the 2008 Proposition 8 campaign in California became controversial, and reactions that followed – was published today on the RealClearPolitics web site under the title “Freedom to Marry, Freedom to Dissent: Why We Must Have Both.”

Among the 58 individuals who signed the statement are University of Minnesota law professor Dale Carpenter, Wayne State University philosophy professor John Corvino, University of Wisconsin political scientist Donald Downs, NYU law professor Richard Epstein, former Arizona superintendent of public instruction Lisa Graham Keegan, former Congressman Jim Kolbe (R-Arizona), Eli Lehrer of the R Street Institute, former national GOP chairman Ken Mehlman, Minnesota state senator Branden Petersen, Jonathan Rauch of the Brookings Institution, U.S. Senate candidate Robert Sarvis, former Georgia Supreme Court justice Leah Ward Sears, Christina Hoff Sommers of the American Enterprise Institute, author and blogger Andrew Sullivan, PayPal co-founder Peter Thiel, and myself.

The signatories – both gay and non-gay, spanning a spectrum of conservative, liberal, libertarian, and progressive worldviews – argue that “sustaining a liberal society demands a culture that respects and welcomes robust debate, vigorous political advocacy, and a decent respect for differing opinions. People must be allowed to be wrong in order to continually test what is right. We should criticize opposing views, not punish or suppress them.”

In support of that proposition, they note that a “culture of free speech created the social space for us to criticize and demolish the arguments against gay marriage and LGBT equality. For us and our advocates to turn against that culture now would be a betrayal of the movement’s deepest and most humane values.”

In addition to RealClearPolitics, the statement is also posted to iPetition, where any individual may affix his or her signature in support of it.

Although "Freedom to Marry, Freedom to Dissent" was only released about two hours ago, commentary on the statement has already appeared on the Independent Gay Forum and the Volokh Conspiracy.  Expect more reactions over the next day or so.

UPDATES: Box Turtle Bulletin also has a post on this.
Somewhat related, the Williams Institute has issued a report that concludes legalizing marriage equality will add $60 million to Virginia economy over its first three years. Scott Shackford offers this at Reason.com. At the Business Law Prof Blog, Joshua Fershee comments from the perspective of, naturally, a business law professor. The Hoover Institution's Peter Berkowitz has posted a commentary at RealClearPolitics. There is also a discussion thread about the statement on DebatePolitics.

UPDATES 2 (April 23): Rod Dreher comments at The American Conservative.  Greg Lukianoff of the Foundation for Individual Rights in Education (FIRE) at The Huffington Post.  Conor Friedersdorf at The Atlantic calls us "the liberal wing of the gay equality movement."  Bryan Preston at the PJ Tatler says the statement is a "nice sentiment" but it's also "unrealistic" (and then criticizes the statement for what it didn't criticize).  Joshua Riddle at Young Conservatives calls the statement "AMAZING" and reprints it in full.

At IGF Culture Watch, David Link explains "Why I Signed."  Someone with the pen name "Buckeye" calls the statement "good news on the free speech front" on the Mormon Dialogue & Discussion Board.  Andrew Sullivan says "I'm not much of a joiner, but..."  Michael Polemra at National Review Online's "The Corner" says the "signers of this document ought to be really proud of what they have done." Joe Jervis at Joe.My.God says the statement comes from "a coalition of homocons and others."

Justin Snow reports on the statement for Metro Weekly.  News has apparently reached New Zealand, too.  Ilya Somin explains why he chose not to sign.  Zack Ford at ThinkProgress argues that the "pledge" -- his word, not the signers' -- justifies anti-gay activism.

Reactions are still coming in more than 36 hours after the statement was released. "BlackTsunami" comments at Holy Bullies and Headless Monsters. John M. Becker calls the statement "repugnant" at the Bilerico Project.

UPDATES 3 (April 24):  Jonathan Rauch replies to critics on The Daily Beast with "Opposing Gay Marriage Doesn’t Make You a Crypto-Racist." Eric Schulzke comments in the Daily Oklahoman and Deseret News. Jennifer Rubin mentions the statement on her Washington Post blog. William D. Lindsey comments critically at Bilgrimage. Signatory Jonathan Rowe links. Viktor Kerney includes an excerpt as well as a link. Even the white supremacists at VDare have their say.

UPDATES 4 (April 25): Peter Wehner calls the statement "an impressive stand on behalf of liberal ideals" in Commentary. The American Spectator's Bill Zeiser mentions the statement at the end of an article about signatory Charles Murray. Jonah Goldberg offers backhanded approval at NRO and Jeremy Hooper replies to Goldberg at Good As You. Will Shetterly agrees with the statement, too.

Doug Gibson compares the statement to a recent speech by LDS leader Dallin H. Oaks at the Standard-Examiner. Nelson Garcia alleges some of the signatories once "decided to throw me under the bus." Gina Dalfonzo expresses skepticism over the statement's optimism at Breakpoint. Rob Tisinai admits "Yep, I Signed It" at Waking Up Now. Marvin Olasky cites the statement in an article called "Christians and gay-rights advocates can agree on freedom to dissent" at World.

UPDATES 5 (April 26): Signatory Richard Epstein "sort of" explains his position on same-sex marriage at Ricochet. The blogger at Pink-Briefcase names the statement one of "Five [Awesome] Things" she read this week.

UPDATE 6 (April 27): Carl F. Cannon, Washington bureau chief for RealClearPolitics, writes "On Gay Marriage, Intolerance Cuts Both Ways."

UPDATES 7 (April 28):  Jillian Page offers a Canadian perspective on The Montreal Gazette.  In USA Today, Glenn Harlan Reynolds draws a comparison to the case of a libertarian science fiction writer coming under fire.

UPDATES 8 (April 29):  "Michael-in-Norfolk" says the statement "Is Wrong and Justifies Anti-Gay Activism." Morgan Lee reports about the controversy on The Christian Post.

UPDATES 9 (April 30):  Spiked editor Brendan O'Neill comments on "coercion dolled up as civil rights."  At The Colu.mn, Andy Birkey reports that "Minnesotans sign on to controversial 'Freedom to Marry, Freedom to Dissent.'"