the Odd Couple: Olson and Boies

I received this warm and fuzzzy e-mail about gay marriage coming to DC. I’m happy about the outcome. My problem is that the “aw shucks” POV is unlikely to convince anyone who is not already inclined to agree with the position.

What I believe will be more compelling is for people to watch the broadcast and/or read the transcript of Bill Moyers Journal for February 26, 2010. The legal adversaries in 2000’s Bush v. Gore Supreme Court case — Theodore Olson and David Boies, “one conservative and one liberal — have teamed up to make the constitutional case for same-sex marriage.” And the point that is made repeatedly is that their support is based on the rule of law.

The two lawyers are mounting “a well-financed legal challenge to Proposition 8, California’s 2008 ballot initiative that put an end to same-sex marriage in that state. The case could make it as far as the Supreme Court and define the debate on same-sex marriage for years to come.”

“The case they’ve brought, Perry et al v. Schwarzenegger et al, has created a major stir, with some advocates of same-sex marriage worried that they are bringing the case too soon, that a loss at the Supreme Court could set back the movement for same-sex marriage by years. Olson argues that waiting for civil rights is not an option:

In the first place, someone was going to challenge Proposition 8 in California. Some lawyer, representing two people, was going to bring this challenge. We felt that if a challenge was going to be brought, it should be brought with a well-financed, capable effort, by people who knew what they were doing in the courts. Secondly, when people said, ‘Maybe you should be waiting. Maybe you should wait until there’s more popular support.’ Our answer to that was, ‘Well, when is that going to happen? How long do you want people to wait? How long do you want people to be deprived of their Constitutional rights in California?’

Earlier, to this basic point:
TED OLSON:… People told Martin Luther King, “Don’t do it. The people aren’t ready.” And Martin Luther King responded, “I can’t wait. I’m not going to make people wait.” And when people told Martin Luther King, “You may lose.” He said, “The battles for civil rights are won ultimately by people fighting for civil rights.”

And one more thing. When the Supreme Court had made the decision in Loving versus Virginia in 1967, striking down the laws of 17 states that prohibited interracial marriage, now it’s only what? 40 years later? 40 years later we think that’s inconceivable that Virginia or some other state could prohibit interracial marriage. It’s inconceivable. Public sometimes follows the opinions of the Supreme Court, reads the opinion and says, “My gosh, thank goodness for the Supreme Court. We realize how wrong that was.”

(I’ve written about Loving vs. Virginia, which I too find analogous to the gay marriage issue.)

Perhaps it is my liberal bias, but I found the statements of the conservative Olson the most compelling:

TED OLSON: We’re not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court’s recognized that over and over again. We’re talking about whether two individuals who will be — should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.

At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn’t create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.

Or this exchange:

BILL MOYERS: So, you’re both comfortable invalidating seven million votes in California [who voted for Prop 8]?

TED OLSON: Well, this happens when the voters decide to violate someone’s constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don’t need protection from the courts.

I was particularly fond of this:

BILL MOYERS: But you’re going up not only against the voters of California, the majority, but you’re going up against the Congress of the United States. In the 1990s, Congress passed the Defense of Marriage Act, which actually defined marriage as quote, “a legal union between one man and one woman.” And even declared that states need not recognize the marriages, the same sex marriages of another state. The President signed this. President Bill Clinton signed this. And you want to overturn not only the voters of California, but the Congress and the President of the United States.

TED OLSON:…it often happens that the measures that are passed almost unanimously in Congress, because Congress gets carried away, are overturned by the Supreme Court. And you go back to Members of Congress and you say, “What happened there?” And they’ll say, “Well, we knew it was unconstitutional. We expected the courts to take care of that. We wanted to get reelected. The courts are the ones that come back and help us.”

One of the fascinating aspects of the trial, which began in January, is that one could not watch the proceedings, unless one were in the federal courthouse in San Francisco. “(T)wo filmmakers in Los Angeles came up with an ingenious alternative. Using the trial transcripts and other reporting, plus a cast of professional actors, they turned the case into a TV courtroom drama. Every day of the proceedings has been reenacted on their website, Marriagetrial.com.

So watch/read this piece. You may be convinced, despite your conservative leanings, theological objections, or other issues that, as a matter of long-standing American law and jurisprudence, marriage is a fundamental right, and therefore must include gay marriage as well.
ROG

December Rambling

I’ve become fascinated with the fascination over Joe Lieberman re: the health care debate. This example from a New York Times colummnist is a perfectly good example: Let us contemplate the badness of Joe Lieberman.

Who would have thought that this holiday season we’d be obsessed with the senator from Connecticut?

I guess it’s the fact that people seem surprised by his intransigence, that it is he, rather than 40 Republicans in the Senate holding bill hostage. I am reminded that he is a DINO (Democrat In Name Only). He got all “mavericky” by supported his “good friend” John McCain over the Democratic nominee last year. In 2006, Connecticut Democrats realized that he was no Democrat and booted him from the ticket when he was running for re-election. He ran and won as a Liebermanist.

Oh, and re: those from the GOP: Republicans, religion and the triumph of unreason: How do they train themselves to be so impervious to reality? This came out in August, but is no less true today for that.

But as Paul Krugman said: A message to progressives: By all means, hang Senator Joe Lieberman in effigy. Declare that you’re disappointed in and/or disgusted with President Obama. Demand a change in Senate rules that, combined with the Republican strategy of total obstructionism, are in the process of making America ungovernable. Butut in his defense of the bill on the table, he says:

Bear in mind also the lessons of history: social insurance programs tend to start out highly imperfect and incomplete, but get better and more comprehensive as the years go by. Thus Social Security originally had huge gaps in coverage — and a majority of African-Americans, in particular, fell through those gaps. But it was improved over time, and it’s now the bedrock of retirement stability for the vast majority of Americans.

Look, I understand the anger here: supporting this weakened bill feels like giving in to blackmail — because it is. Or to use an even more accurate metaphor suggested by Ezra Klein of The Washington Post, we’re paying a ransom to hostage-takers. Some of us, including a majority of senators, really, really want to cover the uninsured; but to make that happen we need the votes of a handful of senators who see failure of reform as an acceptable outcome, and demand a steep price for their support.

At the same time, I was surprised by the attack by Mike Madden on Keith Olbermann’s announced intent of civil disobedience: Wrong, Keith: Olbermann’s prescription for protesting the insurance mandate — don’t buy insurance — is nuts. I think these fights are almost always taken on at multiple levels. So if a bill is passed, and a number of people REFUSE on conscience, to abide by said law, sometimes – sometimes – the laws get changed.
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And speaking of laws DC Council Passes Gay Marriage Bill; On to Mayor for Signature. Interesting that Congress – yes, the U.S. Congress – gets final say in this matter. I keep forgetting that the District of Columbia is a protectorate of the United States. But, from the tone of this and other stories I’ve read, it appears that the Democrats in Congress have enough political muscle to pass this; I’ll wait until the actual vote, thank you.
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The 10 Best Web Sites of the Decade
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For those who follow movies, Box Office Mojo has production cost, foreign & domestic box office, and DVD sales in the initial period.
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The resurrection of Josie and the Pussycats?
ROG

Majority Rule, Minority Rights


Suddenly, I was feeling nostalgic for those thrilling days of yesteryear, when the “liberal, activist” Warren Supreme Court ruled the land.

In Gideon v. Wainwright, (1963), the Court ruled that indigent defendants had a right to counsel, even if they couldn’t afford it. In Miranda v. Arizona (1966), the court determined that the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violated the Fifth Amendment of the Constitution.

And, most on point, Loving v. Virginia, the Court declared the state of Virginia’s antimiscegenation law unconstitutional.

If it were up to the general public in the 1960s, would every suspect get a lawyer and a Miranda warning? Heck, no, but it was the right and just thing to do. Or would Virginia and 15 other states have dropped their ban on interracial marriage without “assistance”? The proof is this: 12 states still had the ban on the books into the 1970s, though the laws were legally unenforceable. Alabama removed its law from its books in November 2000.

So, while I understand the political reality of trying to allow gay marriage via state legislature votes (New York, et al.) and public referenda (Maine, et al.), the issue seems so self-evidently right and just that I had a twinge of judicial nostalgia.

No, the only judicial “activism” we get these days are cases such as Kelo v. City of New London (2005), in which the “liberals” on the court allowed the city to use eminent domain to take private property and sells it for private development. I expressed my serious doubts about this case at the time. Turns out that the whole imbroglio ended up being a big money LOSER for New London.

I think gay marriage and other gay rights, such as ENDA will come about throughout the United States. But I’m now pretty convinced that gay marriage nationally will take another generation, another 20 years, to be fully realized. Maybe longer. And it makes me more than a little sad.

The New York Times was Live-Blogging the Gay Marriage Vote in New York State. State Senator Rubén Díaz Sr., one of the eight Democrats voting against the bill, is quoted as saying, “If you put this issue before the voters in a referendum, the voters will reject it.”. Probably true. But as some letter-writer noted, “I wish someone would ask Mr. Diaz if he thinks the civil rights acts of the 1960’s should have been put up for popular votes in the states.” As I said, just is just.

ROG

The Concert Suit

As much as as I hate buying clothes generally, I REALLY hate buying suits. All that measuring, especially when the body trends poorly compared with the previous time I bought a suit, which it did. The harsh lights and the three-sided, full-length mirrors don’t help.

The other bad thing about buying a suit is that I end up spending too much. I’ve gotten myself to the place, and I’m buying one (expensive) suit; why not two, especially when the second is free, except for the alterations? And while I’m at it, how about some new shirts, which are buy one, get one at 50% off? Oh, and new ties to go along with them? And I DO need a better coat for winter. At the end of the excursion, I experience massive sticker shock and don’t buy any suits, or much of anything else clothing-wise for the next two or three years.

The initiation of this shopping spree is this event:

We received information about the dress code for the performance a week ago Sunday. And I own ZERO black suits, and only one white shirt that’s probably too tight. So this past Saturday evening, the wife, the daughter and I went shopping.

And I’ve felt lousy ever since.

Initially, I thought it was just exhaustion that sent me to bed at 8:30 Saturday night, but now I’m thinking it’s some sort of sinusitis and/or allergies flaring up. But what caused the truly horrific insomnia I got Sunday night, so much so that my eyes burned on Monday morning? Probably consuming the cheese and crackers I ate after the Sunday night rehearsal.

But more basically, I think it was a week without riding the bicycle or playing racquetball. When I got to do both on Monday, I got surges of energy that I’d been lacking lately, though I was more stuffed up yesterday.

So no, I can’t blame any of it on shopping for suits, unfortunately.
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Monday night, I did go to the marriage equality rally. The State Senate was supposed to take up the legislation the next day. So the chant was, “What do we want?” “Marriage equality!” “When do we want it?” “Tomorrow!” Tomorrow? I mean, yes, literally, the next day when the vote was due, but “tomorrow” has such lousy scansion; having been to lots of rallies, I’m a big fan of “NOW!”

In any case, the state legislature didn’t vote on much of anything Tuesday, and they won’t be meeting again until next week. I DO think that the position of at least Republican state senator I saw on TV Tuesday night – that the government can’t deal with ANYTHING else until it deals with the budget deficit – is totally bogus. Truth is, balancing the budget will be a long, arduous process that may take weeks; gay marriage can be achieved with one vote in one house, as the State Assembly has already passed a bill. Twice.

Speaking of which: Via Mark Evanier – Shelly Goldstein on stupid, callous, homophobic hateful legislation. Julie Andrews couldn’t do any better.
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I found out in Hispanic Business, of all places, that Glenn Beck Lost His Lawsuit Over A Controversial Domain Name
Fox TV host Glenn Beck has lost a suit he filed against the creator of a satirical Web site spreading a rumor that even the site itself admitted was false: Beck raped and murdered a girl in 1990. Although he lost the case, Beck still received the domain name he sought, but not because the arbitrator awarded it to him. Rather, the man who established the site gave it to Beck himself — but not without getting in a good parting shot. And the REAL kicker is that the guy has kept the CONTENT of the site up at http://gb1990.com/. That’s GB, as in Glenn Beck, 1990 (dot) com.

It’s a nasty little site, but then again, Glenn Beck is a nasty little man. It is also one of those First Amendment issues people love to hate. My reactions is a mix of mild discomfort with a whole lot of schadenfreude.
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Chances Are Profanity Was Intentionally Encoded in Text of Schwarzenegger’s Veto. As though you had any doubt.

ROG

Lighting the Way to Equality

There is a rally this Monday, November 9 from 6 to 7 pm at the Capitol Building in Albany, State Street entrance, in favor of marriage equality.

The NY State Senate is preparing for a special session on Tuesday, November 10th. Apparently, the Senate leadership has indicated that the Marriage Fairness bill (S.4401/Duane) might be voted on that day.

The local NYCLU even came up with talking points if one is speaking with a state senator, not the least of which that:

“Thousands of New York families have been denied the fundamental right to marriage and the basic dignity that comes with state recognition of their family. This discriminatory practice must end. It is time to grant all families the rights and responsibilities that come with marriage.

“New York has long been a leader in civil rights, and it’s time for this state to lead once again. New Yorkers – gay and straight alike – care deeply about this issue. New York already recognizes out-of-state same-sex marriages. It is time to allow same-sex marriages in this state; your vote will put you on the right side of history.”

While I certainly agree with the goals of the rally – and I’m said about the recent vote in Maine on the topic is really depressing – I often wonder about the efficacy of protest generally. And I have been to a LOT of protests in my life. Still, because it is so specifically focused to that targeted date, I find that I am compelled to attend the event.

1. What are your feelings on gay maariage or domestic partnerships?
2. What are your feelings about the value of the street demonstration?

ROG