Bush v. Gore lawyers target same-sex marriage ban

[Straw Man]

http://politicalticker.blogs.cnn.com/2009/05/27/bush-v-gore-lawyers-launch-new-attack-on-same-sex-marriage-ban/

SAN FRANCISCO, California (CNN) – Opponents of California's voter-approved ban on same-sex marriages launched a new court challenge Wednesday, led by lawyers who were on opposite sides of the case that settled the 2000 presidential race.

Attorneys Ted Olson and David Boies have asked a federal judge to block California from enforcing the ban, known as Proposition 8. Though California's Supreme Court upheld Proposition 8 in a ruling issued Tuesday, Olson and Boies argue that the ban violates the U.S. Constitution.

"It is impossible to reconcile the restrictions that Prop. 8 imposes on the right of gay men and lesbians to marry with the U.S. Supreme Court's conclusion that the Fourteenth Amendment protects the right of all citizens to make personal decisions about marriage without unwarranted state intrusion," their lawsuit, filed on behalf of two same-sex couples, states.

Boies and Olson filed suit Wednesday on behalf of two couples who were denied marriage licenses under Proposition 8. A federal judge in San Francisco has set a July 2 hearing date on the matter.

California's Supreme Court rejected a challenge to the marriage ban Tuesday, but left intact about 18,000 same-sex marriages conducted before voters approved the ban in November.

Olson was the lead attorney for George W. Bush in the 2000 Florida recount. He served as solicitor general in the Bush administration after the Supreme Court ruling that effectively decided the election in Bush's favor.

Boies, meanwhile, was the top legal strategist for former Vice President Al Gore, that year's Democratic presidential nominee. Before that, he was the Clinton administration's top lawyer in the anti-trust case against computer software giant Microsoft.

[MCWAY]

http://politicalticker.blogs.cnn.com/2009/05/27/bush-v-gore-lawyers-launch-new-attack-on-same-sex-marriage-ban/

SAN FRANCISCO, California (CNN) – Opponents of California's voter-approved ban on same-sex marriages launched a new court challenge Wednesday, led by lawyers who were on opposite sides of the case that settled the 2000 presidential race.

Attorneys Ted Olson and David Boies have asked a federal judge to block California from enforcing the ban, known as Proposition 8. Though California's Supreme Court upheld Proposition 8 in a ruling issued Tuesday, Olson and Boies argue that the ban violates the U.S. Constitution.

"It is impossible to reconcile the restrictions that Prop. 8 imposes on the right of gay men and lesbians to marry with the U.S. Supreme Court's conclusion that the Fourteenth Amendment protects the right of all citizens to make personal decisions about marriage without unwarranted state intrusion," their lawsuit, filed on behalf of two same-sex couples, states.

Boies and Olson filed suit Wednesday on behalf of two couples who were denied marriage licenses under Proposition 8. A federal judge in San Francisco has set a July 2 hearing date on the matter.

California's Supreme Court rejected a challenge to the marriage ban Tuesday, but left intact about 18,000 same-sex marriages conducted before voters approved the ban in November.

Olson was the lead attorney for George W. Bush in the 2000 Florida recount. He served as solicitor general in the Bush administration after the Supreme Court ruling that effectively decided the election in Bush's favor.

Boies, meanwhile, was the top legal strategist for former Vice President Al Gore, that year's Democratic presidential nominee. Before that, he was the Clinton administration's top lawyer in the anti-trust case against computer software giant Microsoft.

If these guys are such superstar lawyers, why don't they bring up the fact that we already have an effective ruling from the US Supreme Court that states that 1M-1W marriage laws DO NOT VIOLATE THE FOURTEENTH AMENDMENT?

The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state's classification of persons authorized to marry. There is no irrational or invidious discrimination. Petitioners note that the state does not impose upon heterosexual married couples a condition that they have a proved capacity or declared willingness to procreate, posing a rhetorical demand that this court must read such condition into the statute if same-sex marriages are to be prohibited. Even assuming that such a condition would be neither unrealistic nor offensive under the Griswold rationale, the classification is no more than theoretically imperfect. We are reminded, however, that "abstract symmetry" is not demanded by the Fourteenth Amendment.....Loving does indicate that not all state restrictions upon the right to marry are beyond reach of the Fourteenth Amendment. But in commonsense and in a constitutional sense, there is a clear distinction between a marital restriction based merely upon race and one based upon the fundamental difference in sex.

We hold, therefore, that Minn.St. c. 517 does not offend the First, Eighth, Ninth, or Fourteenth Amendments to the United States Constitution.





Once again, the appeal to this MN court ruling was rejected on its merits, which means that the US Court didn't even bother to look it over, because its ruling would have been nearly identical to that of the lower court. And, as such, it's binding on ALL lower courts (See Lockmeyer v. San Francisco (2004) and Wilson v. Ake (2005); The US Supreme Court is credited for making the ruling and setting th precedence).

In fact, gay activists are actually SCREAMING as these two guys NOT to file this suit.

Reason: In laymen's terms, Obama ain't slapped enough left-wing judges on the court yet. If they lose this one it could take DECADES before they get another shot to nationalize gay "marriage".

[Dos Equis]

If they lose this one

You mean "when"?   

[MCWAY]

You mean "when"?   

My bad!!!!

 

On top of that, those 18,000 gay couples might want to just cut their losses and go home. Because, if the US Court were to rule on this and shoot it down, it may actually make California FULLY abide by its constitution and VOID those licenses of theirs, because the CA constitution requires that law must be made by either the Legislature or the electorate. Neither entity made a law, re-defining marriage as a union of two adults who love each other (or whatever), instead of a union between a man and a woman.

[Dos Equis]

My bad!!!!

 

On top of that, those 18,000 gay couples might want to just cut their losses and go home. Because, if the US Court were to rule on this and shoot it down, it may actually make California FULLY abide by its constitution and VOID those licenses of theirs, because the CA constitution requires that law must be made by either the Legislature or the electorate. Neither entity made a law, re-defining marriage as a union of two adults who love each other (or whatever), instead of a union between a man and a woman.

Didn't know that about California.  Definitely judge-made law responsible for those "marriages." 

I've never read it, but I wonder if these guys are relying in part on the U.S. Supreme Court's decision in that Colorado case years back?  I forget the specific circumstances, but I recall Kennedy wrote an opinion talking about how Colorado voters couldn't pass some kind of law depriving homosexuals of certain benefits? 

[MCWAY]

Didn't know that about California.  Definitely judge-made law responsible for those "marriages." 

I've never read it, but I wonder if these guys are relying in part on the U.S. Supreme Court's decision in that Colorado case years back?  I forget the specific circumstances, but I recall Kennedy wrote an opinion talking about how Colorado voters couldn't pass some kind of law depriving homosexuals of certain benefits? 

That case likely won't help them one bit, especially considering that just 10 years later Colorado PASSED a marriage amendment (Ted Haggard scandal and all) to define marriage as a 1M-1W union.

[Dos Equis]

That case likely won't help them one bit, especially considering that just 10 years later Colorado PASSED a marriage amendment (Ted Haggard scandal and all) to define marriage as a 1M-1W union.

Yeah.  Good point. 

[Straw Man]

life is nice when you're talking in an echo chamber.

In CA we have a Supreme Court decision that determined that denying gays the right to marry was a violation of the equal protection clause of the state constitution.

The same court decided that the Prop 8 was an ammendment and not a revision of the state constitution (that's is all the most recent decision was about).

The result we have two specific sub-classes of separate but equal.  We have 18,000 legal gay marriages and we have a much larger group of gays who no longer have the same right.   

We also have a state constitution that contradicts itself.

We also have 5 states that have legal gay marriage.

The whole thing is a complete mess and will only be sorted out on the Federal level.

[Dos Equis]

The only "mess" is the one created by the men in black in California.  They trampled the will of the people.  Refused to put a hold on "marriages" knowing full well that the issue was not fully resolved.  Allowed these "marriages" to take place, I think to try and influence public opinion.  Then finally got it right. 

There is no federal right to homosexual marriage, so nothing will get resolved there.  This sounds like a loser, as McWay has already pointed out.   

[Straw Man]

The only "mess" is the one created by the men in black in California.  They trampled the will of the people.  Refused to put a hold on "marriages" knowing full well that the issue was not fully resolved.  Allowed these "marriages" to take place, I think to try and influence public opinion.  Then finally got it right. 

There is no federal right to homosexual marriage, so nothing will get resolved there.  This sounds like a loser, as McWay has already pointed out.   

I actually agree with you that if it goes before the Supreme Court now it will probably lose

I'm sure you're aware that there was no "right" to many things before the Supreme Court made a decision about the case in relation to our Constitution and determined that the right existed and had been unfairly denied.

[MCWAY]

life is nice when you're talking in an echo chamber.

And nobody would know that more than you! 

In CA we have a Supreme Court decision that determined that denying gays the right to marry was a violation of the equal protection clause of the state constitution.

That was based on how the constitution read PRIOR to Nov. 4, as the CA Court clearly indicated.

The same court decided that the Prop 8 was an ammendment and not a revision of the state constitution (that's is all the most recent decision was about).

File that under the "tell us something we don't know" category. I've been saying that for the better part of a week.

The result we have two specific sub-classes of separate but equal.  We have 18,000 legal gay marriages and we have a much larger group of gays who no longer have the same right. 

How does the saying go again? "Poor planning on your part doesn't constitute an emergency on mine", with the roles of "your" and "mine" being that of the CA court and US Supreme Court, respectively. 

We also have a state constitution that contradicts itself.

Indeed. But, the proper way to remedy that is to VOID those 18,000 gay "marriages", NOT overhaul the entire country's marriage laws.

We also have 5 states that have legal gay marriage.

Actually, we only have three. Vermont's law doesn't kick into gear until September. And, Maine is still in the air. If the people get about 56,000 signatures to activate the "People's Veto" option, the gay "marriage" law gets suspended. If the veto passes, the law goes bye-bye.

The whole thing is a complete mess and will only be sorted out on the Federal level.

Again, the court can (and may) simply do what it's done beforehand: Defer to the "Baker v. Nelson" ruling. Or, it will rule on the case directly, uphold Prop. 8, and force CA to kill the 18,000 gay "marriage" licenses.

As law experts have indicated, the Supreme Court doesn't tends not to buck popular opinion or the trends of the state. For those who cite Loving v. Virginia remember that, by the time the Court ruled on tha case, nearly 2/3 of the states had alreay rescinded their miscegenation laws.

That's why many gay activists insist on a state-by-state strategy. At present, only 4-5 states have recognized gay "marriage"; the rest do not, with 30 of them having state amendments.

[Deicide]

Fodder and distraction for the sheeple...

[MCWAY]

Fodder and distraction for the sheeple...

That would explain why you keep popping up on these threads.

[Deicide]

That would explain why you keep popping up on these threads.

Someone needs to call out the truth.

[MCWAY]

Someone needs to call out the truth.

When he/she shows up, let us know.

[Straw Man]

And nobody would know that more than you! 

That was based on how the constitution read PRIOR to Nov. 4, as the CA Court clearly indicated.

File that under the "tell us something we don't know" category. I've been saying that for the better part of a week.

How does the saying go again? "Poor planning on your part doesn't constitute an emergency on mine", with the roles of "your" and "mine" being that of the CA court and US Supreme Court, respectively. 

Indeed. But, the proper way to remedy that is to VOID those 18,000 gay "marriages", NOT overhaul the entire country's marriage laws.

Actually, we only have three. Vermont's law doesn't kick into gear until September. And, Maine is still in the air. If the people get about 56,000 signatures to activate the "People's Veto" option, the gay "marriage" law gets suspended. If the veto passes, the law goes bye-bye.

Again, the court can (and may) simply do what it's done beforehand: Defer to the "Baker v. Nelson" ruling. Or, it will rule on the case directly, uphold Prop. 8, and force CA to kill the 18,000 gay "marriage" licenses.

As law experts have indicated, the Supreme Court doesn't tends not to buck popular opinion or the trends of the state. For those who cite Loving v. Virginia remember that, by the time the Court ruled on tha case, nearly 2/3 of the states had alreay rescinded their miscegenation laws.

That's why many gay activists insist on a state-by-state strategy. At present, only 4-5 states have recognized gay "marriage"; the rest do not, with 30 of them having state amendments.

jumpin jeebus you must have a lot of free time.

so you agree with half of the courts ruling (ammendment is not a revision) but not the other half which allows teh 18,000 marriages to exist.

The court ruling this week had nothing to do with gay marriage and was only about whether the ammendment was a revision or not.    Personally, I think it is s revision but I have not read the comments by the justices.  My question now would be is their May 2008 decision still valid or does popular vote over-ride the court?  If so, then we should get rid of all the courts and just put everything to a popular vote.

Eventually equal rights for gay people will almost certainly happen in the US.

[MCWAY]

jumpin jeebus you must have a lot of free time.

so you agree with half of the courts ruling (ammendment is not a revision) but not the other half which allows teh 18,000 marriages to exist.

That is correct, because the Legislature or the electorate is supposed to actually make a law, in tune with the court's 2008 ruling. Neither did that; there is NO law on the books, no statute that defines marriage as something other than a union between a man and a woman.

The court ruling this week had nothing to do with gay marriage and was only about whether the ammendment was a revision or not.    Personally, I think it is s revision but I have not read the comments by the justices.  My question now would be is their May 2008 decision still valid or does popular vote over-ride the court?  If so, then we should get rid of all the courts and just put everything to a popular vote.

Again, tell us something we don't know. The May 2008 decision is MOOT, because it's based on how the constutition read, prior to November. You don't get rid of the court. But, the court is bound by the state constitution. And, at the end of the day, the people have the right to amend their constitution.

The only difference between an amendment and a revision, as far as California is concerned, is the Legislature. A revision requires a supermajority of the legislature along with the simple majority of the electorate. An amendment merely require a simple majority vote from the electorate.

Or,

Revision = 51% Electorate + 67% Legislature

Amendment = 51% Electorate

The plaintiffs only filed this suit, because the Legislature is for gay "marriage". Had the court ruled the other way, Prop. 8 would have gone to the Legislature, which would have killed it.

Eventually equal rights for gay people will almost certainly happen in the US.

The irony of that is that many gay activists don't agree with that. In fact, they claim that part of the reason they keep losing cases like this is because their supporters are often too lazy, acting as if nationwide gay "marriage" is a lock, an inevitability.

Some of them swore that Prop. 8 would never pass. When it did, they then swore that the CA court would rule in their favor. But, that didn't happen.

[Straw Man]

The May 2008 decision is MOOT, because it's based on how the constutition read, prior to November.

is it?  has the court said this or are you just assuming this.

[MCWAY]

is it?  has the court said this or are you just assuming this.

It's moot for one reason. The court is bound by the constitution. The May 2008 ruling was based on how the constitution read THEN.

As of Nov. 5 2008, it reads, "Only the marriage of a man and a woman is valid or recognized in California".

That's why I say that these lawyers might want to leave well-enough alone. Because, assuming the US Supreme Court doens't just defer to "Baker v. Nelson", if it shoots this case down (which is likely, hence the reason many gay activists are SCREAMING for these two not to take it to the big court now), not only will Prop. 8 remain but those 18,000 gay "marriages" would go bye-bye.

[Straw Man]

It's moot for one reason. The court is bound by the constitution. The May 2008 ruling was based on how the constitution read THEN.

As of Nov. 5 2008, it reads, "Only the marriage of a man and a woman is valid or recognized in California".

That's why I say that these lawyers might want to leave well-enough alone. Because, assuming the US Supreme Court doens't just defer to "Baker v. Nelson", if it shoots this case down (which is likely, hence the reason many gay activists are SCREAMING for these two not to take it to the big court now), not only will Prop. 8 remain but those 18,000 gay "marriages" would go bye-bye.

I think you and I agree that the court has deemed Prop 8 an ammendment and not a revision to the CA constitution

personally I think it is a revision because it contradicts a previous ruling

Whatever your opinion the fact is that Prop 8 was not a part of the CA Constitution until November 4th (or 5th, doesn't really matter)

why should the 18,000 legal marriages be voided?

[MCWAY]

I think you and I agree that the court has deemed Prop 8 an ammendment and not a revision to the CA constitution

personally I think it is a revision because it contradicts a previous ruling

Whatever your opinion the fact is that Prop 8 was not a part of the CA Constitution until November 4th (or 5th, doesn't really matter)

why should the 18,000 legal marriages be voided?

They should be voided, because the state of California DID NOT create a law (statue XYZ-123) defining marriage as something other than a union between one man and one woman. That is REQUIRED by CA's constitution, either by the Legislature or by the electorate itself.

The CA Court's May 2008 ruling (striking down the old law, Prop. 22) is inadequate; courts don't make laws.

You now have marriage, clearly defined as a 1M-1W union, with NOTHING on the books to exempt those 18,000 gay couples. The CA court is BOUND by the CA constitution, which says clearly that marriage is a 1M-1W union.

If it comes down to overhauling the entire state vs. simply striking down those licenses (simply because the court rushed to judgment and allowed gay "marriage", without a law being made or waiting until the result of the Prop. 8 vote), the answer is a no-brainer.

You KILL the 18,000 gay "marriages". Again, poor planning on the CA's court part (perhaps, trying to swing public opinion against Prop. doesn't equal a constitutional problem for the federal court.