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The unconstitutional nature of Prop 8 has been hashed, rehashed, and turned into a piñata more times (on this website alone) than we care to count. And yet, seeing Ted Olson and David Boies pop up on Bill Moyers’ PBS program — just as we learn no cameras will be allowed at Perry v. Schwarzenegger‘s closing arguments — gives us 40 brand new minutes of pullquote opportunities. This whole segment is worth watching if you have the time, but allow us to share our favorite part:
Says David Boies: “If you didn’t tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn’t need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, ‘This is democracy. But it’s also democracy in which we protect minority rights.’ The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it’s 52 percent or 62 percent or 72 percent or 82 percent of the people. They can’t say, for example, that blacks and whites can’t go to school together — even though 82 percent of the people may think that. They can’t say that women aren’t allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages — even though a majority of people might vote that way in some places.”
Okay, we have a second favorite part, also from Boies: “There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted said is very important. Nobody’s asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court. And what the Supreme Court has said is that even a democratic-elected legislature in Wisconsin cannot decide by majority rule that marriage scofflaws. People who don’t pay their child support, who abuse their children, abuse their wives, cannot get remarried again. They said marriage is so fundamental that you can’t take it away, even for people who have abused an initial marriage. Missouri, the legislature, democratic-elected legislature voted majority rule, overwhelmingly, that imprisoned felons could not get married. Supreme Court says, ‘No, even though they can’t live together, they can’t be together, marriage is such a fundamental human right that you can’t take that away.'”
How about we take this to the next level?
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(Scroll to about 5:30 to see Olson and Boies’ interview begin)
Zypher
I like that they are wonder-twinning this case. To be fair though a lot remains to be seen in terms of outcomes.
edgyguy1426
Thanks for putting this up!!!
Thom Freeheart
Yes. David Boies is smart. However, Ted Olson beat him, remember?
Dan
The thing I don’t understand about Olson is that he says people’s opinions will change after the court rules for gay marriage, but he gives money to some of the biggest gay bashers around (ahem, Santorum). Does he really think opinions are going to change with his buddies out there comparing us to pedophiles and our love to bestiality?
terrwill
@Dan: You have pointed out what makes me very ascared about Ted Olsons joining the pro Gay side of this debate. He has such ties to the right wing lunatics that I sometimes wonder if he is not a wolf in sheep’s clothing. Assuming the pro Gay stance on this matter and somehow sabotaging it. Then I consider David Boies who I can not find anything anti Gay about him. As per above he is kinda sorta very intelligent and I don’t think that he would be so easily fooled by such tatics…………….
I am hoping that tragic way his wife died somehow opened his mind that her death was the result of nothing but stark hatred of one group on another and maybe he sees these campaigns against the Gays are nothing but haters spewing hate…………….
Paschal
@terrwill: He may be a conservative who does things with which I disagree but it seems to be the case that is support of marriage equality is sincere. It wouldn’t be suprising to me if many proper conservatives (I mean none of those moderates) support gay marriage.
MackMichael
you should just read the comment section on Moyers’ site that accompany this clip. You want to read hate? Check it out!
terrwill
@MackMichael: Realize, that Moyers blog is sitting on the PBS website, which one would think would draw a somewhat sane, liberal leaning brand of posters. You want to see vicious, vile, hate that would cause hitler to orgasm check out the posters on rightwing sites where there is any mention of the word “Gay”………..
HueMan
The most optimistic comment is at about 45:25 where Olson talks about Scalia’s dissent in the Lawrence case where he basically said if we allow sodomy, then we have to allow gay marriage! If that is truly in Scalia’s dissent – and I have no reason to doubt Olson on this – it must be one of the few times that Scalia is wishing he had kept his mouth (or pen) shut!
Sam
@HueMan: It is in Scalia’s dissent, but a dissent, by definition, is a justice writing about how the court got it wrong. So I’m not sure why Scalia would regret writing it… It’s not like Scalia has to rule in favor of same sex marriage just because he wrote that Lawrence would lead to it.
MackMichael
Terrwill, I agree that I’ve read horrid rantings on other sites. Fighting Prop 8 in the streets, I had some pretty lunatic ranting shouted in my face, many by “fine Christian folk” (not). But it is your point exactly, one would expect that the program would draw a more well informed and reasoned demographic. So, it is surprising to read the same hateful tripe that one might read on one of those conservative leaning sites.
BamBam
@ MackMichael:
I dunno. Maybe PBS got trolled. If this were put on some extreme-right wing blog with a link, I could see a horde of angry comments emerging from nowhere.
ewe
They both keep reitterating on the presumption that two people who love one another should be able to marry. Well the current law for heterosexual marriage does not require a man and a woman to love each other and that prerequisite should not be put on the shoulders of gay people either if equality is what we seek.
ewe
And if Olsen and Boies win, i believe the Supreme Court will not hear an appeal forcing each and every state to do the same so as to stall civil rights federally.
1EqualityUSA
I want framed pictures of both of these men up in my home. Does anyone know where such a thing exists. Just as Kennedy and King adorned walls of homes in the sixties, every gay person needs to devote wall space to these two. I was overcome with emotion this morning. The pain is unbearable. Thank you Mr. Ted Olson and Mr. David Boise for your efforts and dedication to equality.
Paschal
@ewe: If they win in the ninth circuit and the Supreme Court allows that decision to stand then marriage equality would be allowed in the states which belong to it including California and Utah. A federal right to marry someone of the same sex would therefore exist in some states and not in others. This would probably be the best thing to happen because it;s unlikely that the Supreme Court would decide to allow gay marriage throughout the U.S.A.
John Raymond Barker
Brilliant video. I could not be more thrilled with the work these men have done. They have covered all of the bases so beautifully.
ewe
@Paschal: Exactly. So where would equality be at that point? And i am still very concerned with this use of the word LOVE. We should not be playing people when we are demanding the same rights. I never once recall requiring a straight couple who were getting married to profess their love to me or the world.
Paschal
@ewe: It seems to be true that people who fight simply to be treated the same are forced to do more than prove that they deserve to be treated equally. I wish all the luck in the world to David Boies and Ted Olsen. It’s a pity that Ted Olsen defends homophobes including the Governor of Virginia.
ewe
History shows that laws are made for and by straight white males and i have my suspicions and cynicism when these two come waltzing in out of nowhere. Although i like Bill Moyers, it is no secret he is extremely devout in his christian beliefs personal though they may be. I see him probing the minds of these two because he has deemed them as credible. I admit i may be hypersensitive and judgemental of them but i have my reasons for distrust. It is more than just a case to win for gay and lesbian people. But i say good luck as well.
1EqualityUSA
This is an airtight case. If we lose it is due to bias. These men are beautiful.
Lukas P.
Olson and Boies didn’t just make a legal case for same-sex marriage, they’ve made a logical AND moral case for it.
Strip away the verbiage behind the Prop 8 supporters/defenders and their arguments are solely based on religious beliefs. That’s all they got, folks!