Liberal Lawyers Prepare to Take Prop 8 California Protection of Marriage Initiative to the Federal Supreme Court

Friday, July 24, 2009

Brian Brown, Executive Director of the National Organization for Marriage tears appart uberliberal lawyer David Boies' (and his libertarian partner Ted Olson's) argument against California votors in the upcoming federal lawsuit seeking to overturn Prop 8:

When I heard that two such high-powered lawyers were involved, I admit I was a little nervous, what with the strange way some courts are acting. But really, after reading his WSJ op-ed I thought: Is this the best he can do?

"The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it," Boies declares.

Well, no, actually the Supreme Court has upheld numerous restrictions on the right to marry someone you love, if that person is judged too young, or too closely related by blood (or even marriage!), or if the person you love happens to be already married to someone else. (There is actually a very famous Supreme Court decision upholding the federal government's right to restrict polygamy, Reynolds v. United States.)

FACT: No Supreme Court has ever suggested the fundamental right to marry includes the right to same-sex marriage.

"There is no legitimate state policy underlying Proposition 8," Boies declares.

Please, there are many good reasons why states do not have an obligation to recognize same-sex unions as if they were marriages, especially the fact that same-sex unions cannot serve the primary public purpose of marriage: responsible procreation. Marriage, from the government's point of view, is about bringing moms and dads together to protect children. That's why government goes to the trouble of trying to create something called civil marriage in the first place.

FACT: Almost every time an Attorney General has been willing to assert that the core state interest in marriage is creating stable sexual unions that can create new life and limit fatherlessness, courts have upheld marriage. The only state court cases that have ever found a right to gay marriage are cases where the attorney general (like the former "Gov. Moonbeam," Jerry Brown, in California) has refused to make this argument to the court. If the state purpose of marriage is only "tradition" Boies would be right--that's not a reason. But responsible procreation is a good reason why marriage is limited to unions of man and wife.

"The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion," Boies sniffs

Au contraire. It is perfectly easy to see why, if the government declares that same-sex unions are "no different" than marriage, the idea that marriage matters because children need a mom and dad will be effectively overruled in the public square.

FACT: Once gay marriage is law, our taxpayer money will be used to teach our own children and grandchildren that our view of marriage is now discarded bigotry. Marriage, they will be taught, is no longer about sex difference in the service of children and the common good.

"Even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love," Boies goes on.

FACT: Nobody is trying to force lesbians to do anything. Gay people in these cases are saying they do not want to marry, they want to do a different kind of relationship. That's their right. But neither they nor David Boies nor the judges have the right to tell Americans we must redefine marriage to accommodate these private and personal views.

"It is precisely where a minority's basic human rights are abridged that our Constitution's promise of due process and equal protection is most vital," says Boies.

The most basic right is the right to be treated fairly by courts which respect the rule of law. David Boies wants to go into federal court and overturn the civil rights of the 7 million Californians who voted to protect marriage because he personally thinks we are all irrational bigots. And that's wrong. It's also deeply offensive thing to say and do.

"The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers."

David, at last you say something I agree with. Law is about justice, not bumper stickers. That's why I'm getting up every day to fight for the truth about marriage. "There is none so blind as he who will not see."We know the court will hear the powerful voice of David Boies. Will they hear your voice as well?

When courts get into the business of making up new civil rights to accommodate people's private and personal desire, where are they going to stop? When does a desire become a right? Where do we draw the line? One firm place to stand is on the great and noble truth: Human beings are born of men and women, we are born male and female, and the great organizing principle of marriage is the need to bring together men and women to make and raise the next generation.

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