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More on Ted Olson's federal lawsuit for gay marriage:

To be honest, when I first heard that former Bush Solicitor General Ted Olson, a rock-solid member of the conservative legal movement, had filed a federal lawsuit to invalidate Prop 8 I thought it was an Internet hoax. So I held off posting about it for awhile last night. It was a surprise because I had no idea Olson supported equality for gays and lesbians, much less full marriage rights. It was doubly a surprise because, even if he supported gay marriage, Olson struck me as the kind of conservative who would reject what many conservatives would regard as judicial activism.

But, behold, here is Ted Olson in a press release today explaining the merits of the case just filed, in which he and David Boies have requested a preliminary injunction:

“Yesterday, the California Supreme Court said that the California Constitution compels the State to discriminate against gay men and lesbians who have the temerity to wish to express their love and commitment to one another by getting married,” Olson said. “These are our neighbors, coworkers, teachers, friends, and family, and, courtesy of Prop 8, California now prohibits them from exercising this basic, fundamental right of humanity. Whatever discrimination California law now might permit, I can assure you, the United States Constitution does not.”

“Mr. Olson and I are from different ends of the political spectrum, but we are fighting this case together because Proposition 8 clearly and fundamentally violates the freedoms guaranteed to all of us by the Constitution,” Boies said. “Every American has a right to full equality under the law. Same sex couples are entitled to the same marriage rights as straight couples. Any alternative is separate and unequal and relegates gays and lesbians to a second class status.” . . .

Today’s lawsuit argues that the California’s Constitution -- as amended by Proposition 8 -- violates the Fourteenth Amendment of the United States Constitution, a provision with which all state laws must comply. Relegating gays and lesbians to “separate but unequal” domestic partnerships violates the U.S. Constitution, the suit states. California’s domestic partnership law is not an adequate substitute for access to the State’s institution of civil marriage, the suit states, because domestic partnerships do not provide all of the legal and government benefits and protections that marriage does.

“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit states, referring to the Court’s decision in Loving v. Virginia, which struck down bans on interracial marriage.

According to the suit, Proposition 8:

· Violates the Due Process Clause by impinging on fundamental liberties.

· Violates the Equal Protection Clause of the Fourteenth Amendment.

· Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”

· Discriminates on the basis of gender.

· Discriminates on the basis of sexual orientation.

[Plaintiffs] Kris Perry and Sandy Stier have been together for 9 years and are the parents of four boys. . . . Paul Katami and Jeff Zarrillo have been together for 8 years. . . . Having wanted to marry each other for more than two years, they considered options including traveling to other states for a “civil union,” but felt any alternative fell short of marriage.

You can view the press conference and see the Complaint by following the link above.

Related Posts (on one page):

  1. More on Ted Olson's federal lawsuit for gay marriage:
  2. Federal challenge to Prop 8:
Nunzio:
This case is a stretch.
5.27.2009 3:17pm
A Law Dawg:
Dick Cheney needs to publicly support this as well.
5.27.2009 3:18pm
tarpon (mail):
Interesting 14th Amendment argument ... So I assumed this means the Second Amendment applies to all the States, and is obvious to everyone, RIGHT?

The only problem with the suit is marriage is a church sanctioned custom that is trying to be destroyed, not a State mandated law. The State only wants the money from the fees.

There is no right to marriage. Contract laws easily accommodates the legal needs of gays. And in many cases prenuptials do the same thing for straights.

Lets cut to the chase, it's all about the word marriage, and destroying it's meaning in our society.
5.27.2009 3:22pm
A Law Dawg:
Tarpon,

One could say it's all about the word marriage, and removing the government's influence over a church-sanctioned custom.
5.27.2009 3:25pm
GatoRat:
This case makes no sense. One couple has been together 9 years, the other 8 and they didn't get married last year, when such marriages were legal in California. That they didn't get married when it was legal indicates that their are, at best,, disingenuous in their claims.
5.27.2009 3:25pm
martinned (mail) (www):
I would imagine this is bad strategy. Why allow the supreme court to set a precedent?
5.27.2009 3:26pm
Anderson (mail):
Why allow the supreme court to set a precedent?

Ah, NOW we see Olson's angle!
5.27.2009 3:28pm
areader (mail):
That they didn't get married when it was legal indicates that their are, at best,, disingenuous in their claims.

I know, what a bunch of idiots thinking they could take the time to plan the wedding they wanted. God, everyone knows you need to be constantly exercising your rights immediately or you have no cause to complain about them being taken away from you.
5.27.2009 3:34pm
GatoRat:
I know, what a bunch of idiots thinking they could take the time to plan the wedding they wanted.

Give me a break; are you really proposing it takes nine months to plan a wedding? Moreover, if you've been wanting to get married, you have a pretty damn good clue what you want for a wedding.

My wedding took less than three months to plan. It actually could have been done in a week, but all those announcements took time.

These people are liars.
5.27.2009 3:37pm
CatoReansci (mail):
Boies is a lefty, and a big one. IF he is involved, it's a real case and Olson is no longer on the side of the angels here. This is very bad.
5.27.2009 3:38pm
martinned (mail) (www):
@GatoRat: I think the point wasn't that they couldn't possibly have gotten married in that time, but rather that their rights shouldn't depend on whether they did, just like - to take an obvious example - your 1st amendment rights don't depend on whether you actually do speak, go to church, work as a journalist, etc.
5.27.2009 3:39pm
wfjag:
Sort of puts the lie to the mantra that all conservatives are homo-phobes. Don't expect the MSM to report this. It doesn't fit the story line. Our news media is much too busy reporting "news" to report facts.
5.27.2009 3:43pm
donjuan (mail):
If marriage is simply a religious custom, then denying gays the right to marry violates their 1st amendment rights. I simply don't understand why people can't start the The Church of Gay Christ, Our "Crucified" Savior, and get married there.
5.27.2009 3:46pm
martinned (mail) (www):

Sort of puts the lie to the mantra that all conservatives are homo-phobes. Don't expect the MSM to report this. It doesn't fit the story line. Our news media is much too busy reporting "news" to report facts.

How about CNN?
5.27.2009 3:49pm
GatoRat:
Martinned,

I disagree. If their claim is that they had a deep desire to get married and when that option arose, they declined to act on it, that means they didn't have a deep desire after all and, in fact, aren't having any rights, real or imagined, being violated.

1st amendment rights don't depend

But filing a lawsuit based on my first amendment rights being violated to depend on them actually being violated.

If I had a chance to say something I've been wanting to say for years, but passed on that chance, I become a liar, even if I may have claims of my rights being violated.

In the case of same sex marriage, there are plenty of couples who didn't have a deep seated desire for years to get married and yet passed on that chance when it was legal.
5.27.2009 3:53pm
ruuffles (mail) (www):

A lawsuit filed in federal district court states that Proposition 8 -- which
eliminated the right of same sex couples to marry in California -- creates a class of “second-class
citizens” and thereby violates the U.S. Constitution.

Does their case rest on the decision in In Re Marriage Cases? In other words, would things change if the California SC ruled the other way in IRMC and Prop 8 was passed?

Are they asking a federal court to declare "California may not pass Prop 8" or to declare "California must recognize SSM"? The former would only legalize SSM with the help of IRMC.
5.27.2009 3:54pm
AJK:

If marriage is simply a religious custom, then denying gays the right to marry violates their 1st amendment rights. I simply don't understand why people can't start the The Church of Gay Christ, Our "Crucified" Savior, and get married there.


Reynolds v. United States, 98 U.S. 145.
5.27.2009 3:54pm
GatoRat:
Better yet, find a couple that scheduled their wedding after the elections in November because one or both had been out of the country on business (or deployed in the military!)
5.27.2009 3:57pm
Anderson (mail):
GatoRat (I'll give you at least one out of two there):

Quite possibly, the couples in question were waiting to see how the legal struggle ended up. Until this week, there was a live question whether the marriages that took place before Prop 8 would even remain valid.

That is at least as likely as "these people are liars."
5.27.2009 4:00pm
one of many:
tarpon has a summary which is the closest I've seen to the real problem in a while. if the problem is truly equal rights, just get government out of the marriage business altogether and have the government create a purely civil institution. equality before the law isn't the real issue though, although i've been mentioning getting government out of marriage since vermont created civil unions i've never been able to get a pro-gay-marriage person to sign on to it. the real issue is forcing acceptance of homosexuality not equality.
5.27.2009 4:01pm
Laura Victoria (mail):
MSNBC just covered it prominently as well, with a report from Pete Williams that included concerns by some gay rights activists over the issue about whether this is good timing given they don't think they have the votes.

Question: I didn't see the complaint on the link, only the press release. Can someone please point me in the right direction. Thanks.

Laura
5.27.2009 4:03pm
John Moore (www):
CatoReansci:

Boies is a lefty, and a big one. IF he is involved, it's a real case and Olson is no longer on the side of the angels here. This is very bad.

Oh, come on. Olson is a good conservative and an honorable man. That he disagrees with many of us on this one issue does not detract from that.

The demand for ideological purity fits better with the left than the right.
5.27.2009 4:06pm
ruuffles (mail) (www):
Here is the complaint pdf

pdf
5.27.2009 4:06pm
xbg:
complaint is here :

http://www.equalrightsfoundation.org/press.html

press conference:

http://www.equalrightsfoundation.org/index.html
5.27.2009 4:09pm
Smooth, Like a Rhapsody (mail):
Rhetorical point re the above post:
"couples" do not have rights.

Also:

You may marry anyone you wish as long as both you and your affianced are:
alive
a human being
an adult (or, with parental consent, of sufficient age)
ummarried
of the opposite gender
not more closely related to you than the n-th degree (where "n" varies from state to state)
mentally competent

...I may have forgotten one or two.

I know this gets brought up every time SSM is the subject of a post, but is there any intellectually coherent reason for politically privileging that one restriction (gender) over any of the others?

What about the person who says that I want to marry person X, but the IRS set up the tax law such that, because of the income that "person X" earns we, as a married couple, would take a huge tax hit? Is he entitled to any dispensation?
5.27.2009 4:11pm
Bart (mail):
Dale:

One does not have to believe in the case to argue its merits. Otherwise, this criminal defense attorney would have little work.
5.27.2009 4:15pm
martinned (mail) (www):

But filing a lawsuit based on my first amendment rights being violated to depend on them actually being violated.

That sounds about right...


If I had a chance to say something I've been wanting to say for years, but passed on that chance, I become a liar, even if I may have claims of my rights being violated.

No, you become a quiet guy. (Or maybe a liar by omission, depends.)


In the case of same sex marriage, there are plenty of couples who didn't have a deep seated desire for years to get married and yet passed on that chance when it was legal.

Which matters why? Are you saying that a law that allows SSM only one month in the year would be OK? (No standing for lack of substantial interest...)
5.27.2009 4:20pm
Hovsep Joseph (mail):
Imagine if Bush had appointed Olson to the Supreme Court! He was on some short lists but as I recall was considered unlikely because he was seen as too partisan a figure.
5.27.2009 4:20pm
The Unbeliever:
What about the person who says that I want to marry person X, but the IRS set up the tax law such that, because of the income that "person X" earns we, as a married couple, would take a huge tax hit?
Next up: the Second Wife Tax. Coming soon to an open-minded state near you!
5.27.2009 4:20pm
Plumb Bob (mail):
GatoRat, Martinned:

Gay marriage has been legal in Massachusetts since 2004. There was a wave of marriage license applications immediately following the judicial decision that forced the change in the law, about 7,500. Since that time, the number of same-sex couples seeking marriage licenses in Massachusetts has not exceeded 3 digits in any year. This is out of a gay population that exceeds 150,000, if the rate of homosexuality here is comparable to the US at large; and I'll wager that the rate here is actually much greater.

It's not about marriage; gays, by and large, don't even really want to marry. It's about gays forcing society to recognize homosexuality as normal, most likely in an attempt to make themselves feel normal.
5.27.2009 4:20pm
eswierk (mail):

That they didn't get married when it was legal indicates that their are, at best,, disingenuous in their claims.


My partner and I have been together 11 years. We wanted to get married but changing our marital status while our daughter's adoption was pending would have complicated the process. We gambled that marriage (to each other) would still be possible after the adoption finalized, and lost.

Just because you've never faced a problem yourself doesn't mean none exists.
5.27.2009 4:20pm
Cornellian (mail):
Call me suspicious but I'm still not convinced there's no hidden agenda behind this lawsuit.
5.27.2009 4:22pm
David M. Nieporent (www):
Give me a break; are you really proposing it takes nine months to plan a wedding? Moreover, if you've been wanting to get married, you have a pretty damn good clue what you want for a wedding.

My wedding took less than three months to plan. It actually could have been done in a week, but all those announcements took time.
I don't believe you. Perhaps you're unaware of the amount of time your fiancee put into planning. Weddings do not take "less than three months." Where do you even book the reception on such short notice, let alone the band, photographer, etc.?
5.27.2009 4:27pm
John kmm (mail):
As Roberts pointed out , when appointed , you dont need to share your client position when filling
5.27.2009 4:34pm
Crackmonkeyjr (www):
tarpon: Like it or not, marriage is at least as much a civil institution as it is a religious institution. Marriage was basically a civil arrangement from Rome until the 11th Century or so, then it was basically a religious institution, and now it is both.

Currently, marriage has effects on all sorts of legal rights, ranging from those that are easily remedied through contract, such as who can visit you in the hospital, to things that are quite difficult to accomplish through contract, such as health insurance benefits, to things that cannot be accomplished through contract, such as standing in certain types of lawsuits such as wrongful death cases, tax filing status, immigration rights, etc.

Most importantly, there is very little risk that any lawsuit or bill will have any bearing on who a religious organization has to marry. Compare this to divorce. Catholicism does not recognize divorce, and will not let you get married if you have been divorced. That doesn't mean that a divorced Catholic cannot get married by a justice of the peace. This is how SSM would work. Catholics and evangelical Christians are well within their rights to deny gay couples the sacriment of marriage, but that gay couple will be allowed to go and get all of the legal rights by being married in the eyes of the state.

In short: Both the idea that this is about redefining a religious rite, and the idea that you can get all the same rights as a married couple through contract, are red herrings and total BS.
5.27.2009 4:34pm
Chico's Bail Bonds (mail):
I can tell you from personal experience, GatoRat, nine months is not very long to plan a wedding. Many locations are booked more than nine months in advance, and people with day jobs need plenty of lead time to research, hire, and coordinate the various vendors associated with a wedding.

Of course it is possible to plan a wedding in one day, but that doesn't mean those who take longer are lying about their desire to get married.
5.27.2009 4:35pm
Hoosier:
wfjag:

Sort of puts the lie to the mantra that all conservatives are homo-phobes.

Add me to that list. Although nancys with guns who tried to mug me would make me scared. Does that count?
5.27.2009 4:38pm
Hoosier:
Chico's

Also, getting a (competent) photographer can take close to a year, because they book very early.
5.27.2009 4:39pm
SteveW:
I thought the strategy was to wait to raise federal constitutional issues until the makeup of the Supreme Court had shifted to the left. The Olson/Boies suit raises due process, equal protection and every other conceivable argument. If they go all the way to the Supreme Court and fail, then there will be negative precedent on every issue.

So I wonder if they intend to stop at the district or circuit level.
5.27.2009 4:52pm
martinned (mail) (www):

So I wonder if they intend to stop at the district or circuit level.

What's the point of that? If they lose, they've got nothing, and if they win (9th circuit anyone?) the other side will appeal. Even a win in the CoA is no good, because there's no way the Supremes would let something like that stand.
5.27.2009 4:55pm
mooglar (mail):
one of many:

I know a lot of people on the left (myself included) who would be fine with government getting out of the marriage business. But that's a disingenuous argument anyway: you know that all the people clamoring about how SSM will harm the institution of marriage aren't going to be okay with getting rid of legal marriage as a solution to marriage equality.

The whole notion is just an attempt to make it seem that supporters of SSM are disingenuous because they're fighting for SSM rather than getting rid of marriage altogether. But, of course, that battle is unwinnable, which is why people like you keep bringing it up. Harping on that all the time is a win-win: Either we don't go for it and you make a fuss about it, or we do go for it and waste our energy on an unwinnable fight. Uh huh.

In any case, I'm sure that supporters of equality in marriage rights wouldn't be pilloried to high heaven by the right if what they tried to do was get rid of government-sanctioned marriage altogether. There's no way conservatives would be okay with that strategy and just say, "Well, at least that would be fair." No, it'd be all, "They're trying to destroy our families" this and "Why do they want to take our rights away from us?" and "Why can't they just leave us alone?"

Not fooling anyone with that one.
5.27.2009 4:56pm
RPT (mail):
"Boies is a lefty, and a big one."

If a (even former) Cravath partner can be called a "lefty" then the term has no meaning.
5.27.2009 4:59pm
Danny (mail):
How does this Olson guy, a conservative HETERO, get off usurping the role of our historical gay rights organizations?
What is his real agenda?
I smell a big stinking right-wing rat!
5.27.2009 4:59pm
wm13:
This is certainly orthogonal to the original post, but my wedding took six weeks to plan and execute. Admittedly, it was done by my mother, who was a professional party planner, and it was done in New York City, which is a large market, but it certainly can be done. (She called all the local banquet facilities managers, and found a suitable room at The Plaza, which was our second choice; she called some of the agents for bands who habitually badgered her; she called her stable of flower arrangers; etc. I don't think locating a full complement of vendors took her more than a day.)
5.27.2009 5:08pm
IPLawyer:
Gatorat = Stephen Colbert.... gotta be
5.27.2009 5:15pm
hawkins:

Give me a break; are you really proposing it takes nine months to plan a wedding?


Depends on where and how you want to get married. I dont know anyone who plans it in 3 months.
5.27.2009 5:22pm
ruuffles (mail) (www):

What's the point of that? If they lose, they've got nothing, and if they win (9th circuit anyone?) the other side will appeal. Even a win in the CoA is no good, because there's no way the Supremes would let something like that stand.

There's something of a precedent. I'm going to quote from wikipedia

The constitutionality of Prosposition 187 was challenged by several lawsuits. On November 11, 1994, federal judge Matthew Byrne issued a temporary restraining order against instituting most of it.[6] Multiple cases were consolidated and brought before Judge Mariana Pfaelzer, who in November 1997 found the law to be unconstitutional.[3] Governor Wilson appealed the ruling, which brought the case to the federal Ninth Circuit Court of Appeals. In 1999, newly elected Democratic Governor Gray Davis had the case brought before mediation,[7] and then dropped the appeals process before the courts, effectively killing the law.[8]

Maybe they're banking on a Democratic governor being elected in 2010.
5.27.2009 5:32pm
Anynonyno:
wm13, if your mother was a professional party planner, then it's hard to imagine how your experience of planning a wedding could have been less typical.

I don't trust Olson or Boies. I smell a treacherous effort to establish an unfavorable SCOTUS precedent and further inflame right-wing activists on the gay marriage issue.
5.27.2009 5:34pm
Crackmonkeyjr (www):
Gatorat: Yes you can get married in a day or two if you want to, but most people would like to have some sort of ceremony beyond showing up at City Hall and waiting in line. I'm currently in the process of planning my wedding. We got engaged on 2/22/09 and will be married on 10/4/09, seven and a half months later. Compared to friends of mine who have gotten married recently, this is an amazingly short engagement.

Even looking at tradition, you are supposed to send out your wedding invitations 8 weeks before the ceremony (and most people recognize that this is too short notice to ensure all your guests can make it, and so send out "save the date" notices much earlier). Considering it takes some time to find a venue, and get the wedding invitations together, this easily puts you over the three month mark right there. Add in the fact that most venues are booked when you get to the three month mark and you better be planning your wedding a bit more than 3 months in advance.
5.27.2009 5:35pm
PaulTX (mail) (www):
Tarpon, supra:


Contract laws easily accommodates the legal needs of gays.


So, if my partner and I draw up a contract granting each other spousal privilege against compelled testimony, or allowing one to draw the other's Social Security benefits, do you think we could force our claims on the government?
5.27.2009 5:36pm
J. Aldridge:

[T]the care of the property, the liberty, and the life of the citizen, under the solemn sanction of an oath imposed by your Federal Constitution, is in the States, and not in the Federal Government. I have sought to effect no change in that respect in the Constitution of the country. --John Bingham, March 9, 1866
5.27.2009 5:54pm
mooglar (mail):
Plumb Bob:


Gay marriage has been legal in Massachusetts since 2004. There was a wave of marriage license applications immediately following the judicial decision that forced the change in the law, about 7,500. Since that time, the number of same-sex couples seeking marriage licenses in Massachusetts has not exceeded 3 digits in any year. This is out of a gay population that exceeds 150,000, if the rate of homosexuality here is comparable to the US at large; and I'll wager that the rate here is actually much greater.

It's not about marriage; gays, by and large, don't even really want to marry. It's about gays forcing society to recognize homosexuality as normal, most likely in an attempt to make themselves feel normal.


Hmm. So, homosexuals don't really care about marriage because they're not availing themselves of it (if your statistics are correct) at a rate you find acceptable? Based on low absolute numbers? Even if your numbers were right, and they seem to be entirely guesswork, if gay marriage "has not exceeded 3 digits in any year," and there were 150,000 gays in Massachusetts, and 7,500 got married in the first year, then we would have, let's say, 999 marriages a year since 2004. So, let's say, about 13,000 gays have already gotten married.

And, it turns out that marriage rate in the US, according to the CDC, is about 7.5 per 1000 people per year. So, in six years of gay marriage, we would expect something like 5625 gays to get married out of your 150,000 estimate of gay population in Massachusetts. In other words, even if no gays got married at all in Mass after 2004 the rate of marriage among gays would be greater than the rate of marriage in the US population as a whole. And, in fact, it turns out that your "not exceeded 3 digits in any year" standard isn't far off from expectations anyway. We would only expect 1125 marriages per year in a population of 150,000.

But I imagine that even if there were exactly 1125 gay marriages every year in Mass, making gays exactly as likely to get married as everyone else, you would say something like, "since gays applying for marriage licenses have not exceeded 1500 in any one year" as if that somehow made your case, right?

And, as to your second point, even if it were true (it isn't) that the only reason gays support SSM is to try to feel "normal," what the hell is wrong with that? Because you've decided it isn't, homosexuals just have to accept that and feel bad about themselves on your say so? That's just crazy. Everyone has something about them that someone else thinks isn't "normal." You are saying that it is wrong and inappropriate for people not to accept other peoples' negative opinions about them? Or only the people you don't think are normal?
5.27.2009 5:56pm
Anderson (mail):
I dont know anyone who plans it in 3 months.

If you have the reception at McDonald's, you can usually get that about 2 months in advance.

Or, um, so I hear.
5.27.2009 5:56pm
zuch (mail) (www):
tarpon:
The only problem with the suit is marriage is a church sanctioned custom that is trying to be destroyed, not a State mandated law....
"[T]rying to be destroyed"?!?!? The very first suicidal custom in the annals of anthropology. Where's the Zoloft when you need it? But a FYI: if the state decided to get out of the marriage business entirely and leave such to the churches, there would be no issue here (and in fact I stated before the decision that this was perhaps the only way to rationally reconcile the amendment and the California Constitution [as did Douglas Kmiec].
... The State only wants the money from the fees.
Oh, really? You know this how? But even if this were so, that doesn't change the legal landscape.

Cheers,
5.27.2009 5:58pm
Parenthetical:
@ RPT

If a (even former) Cravath partner can be called a "lefty" then the term has no meaning.

I thought that William "Wild Bill" Douglas (briefly an associate at Cravath) pretty much ruined any import that firm had, no?
5.27.2009 6:02pm
Bob VB (mail):
From an article about Massachusetts marriage equality at 5 years:

"According to the latest state figures, through September 2008, there had been 12,167 same-sex marriages in Massachusetts _ 64 percent of them between women _ out of 170,209 marriages in all."

that's over 7% of all marriages when self-identified GLB people are only about 2% of the population (there are more who aren't self-identified but obviously they aren't going to be getting in a same gender marriage, right?)

It's not about marriage; gays, by and large, don't even really want to marry.

Adoption at over 3x the general population's rate is not really wanting it? 16% married after just 5 years is not really wanting it? Remember the contract is just a contract in support of marriage, its not 'marriage', same gender married couples who have been living together for years before the civil contract was available have already taken steps to legally bind themselves comfortable ones they, crafted together without the state's help.

16% licensed and adopting at 3x their representation in the population is hard thing to spin as 'not wanting' something.
5.27.2009 6:02pm
zuch (mail) (www):
GatoRat:
This case makes no sense. One couple has been together 9 years, the other 8 and they didn't get married last year, when such marriages were legal in California. That they didn't get married when it was legal indicates that their are, at best,, disingenuous in their claims.
While you may not have had occasion to know this, some people plan their marriages even years in advance. But you say that "at best", they're being "disingenuous". What's the worst case in your mind? They're coming to hide under your bed, and jump up in the middle of the night to infect you with teh gay? Curious minds want to know ... how far pathology can extend.

Cheers,
5.27.2009 6:04pm
Stephen Clark (mail):
What no one will find at http://www.equalrightsfoundation.org is who is on the board of this out-of-nowhere organization, who is funding it, and who is making decisions for it. Who is this organization that has set out to sabotage the marriage-equality movement?

No one has said that Olson and Boies are handling this pro-bono. If they're being paid, they'll obviously say whatever their funding source requires them to say.

Dale was right to be skeptical. This lawsuit makes no sense as a test case. Why would you ask the U.S. Supreme Court to stick its neck out over plaintiffs who already have access to all the rights, benefits, and obligations of marriage via California's domestic partnerships? If you were putting together a legitimate test case, you'd get more sympathetic plaintiffs from a state that denies them all the rights, benefits, and obligations of marriage.

Nothing about this lawsuit smells right.
5.27.2009 6:07pm
KWC (mail):
This is total sabotage.
5.27.2009 6:09pm
zuch (mail) (www):
Smooth, Like a Rhapsody (mail):
You may marry anyone you wish as long as both you and your affianced are:
alive
a human being
an adult (or, with parental consent, of sufficient age)
ummarried
of the opposite gender
not more closely related to you than the n-th degree (where "n" varies from state to state)
mentally competent
of the same race

How'd that work out?

Cheers,
5.27.2009 6:16pm
keypusher64 (mail):
Parenthetical:
@ RPT



If a (even former) Cravath partner can be called a "lefty" then the term has no meaning.

What a perfectly idiotic thing to say. Unless you think "lefty" means "Maoist" or something.

I thought that William "Wild Bill" Douglas (briefly an associate at Cravath) pretty much ruined any import that firm had, no?

Cravath is one of the best law firms in the world (no, I never worked there. They wouldn't have me), and has been for decades. If Wild Bill Hickok had worked as an associate there instead of William Douglas (who was, you know, a Supreme Court justice), it wouldn't have the smallest impact on the firm's reputation or "import."
5.27.2009 6:21pm
Leo Marvin (mail):
wfjag:

Sort of puts the lie to the mantra that all conservatives are homo-phobes. Don't expect the MSM to report this. It doesn't fit the story line. Our news media is much too busy reporting "news" to report facts.

Then can someone recommend a good wormhole directory to get me back home? Because I somehow find myself in a time space continuum where this story's been on NPR all day.
5.27.2009 6:26pm
GatoRat:
I got engaged about September 10, 2005. Was married November 27, 2005.

Just because someone is engaged for a long period of time, doesn't mean a wedding takes that long to plan. It simply doesn't. I can't think of anyone in my extended family that took more than four months to plan and do a wedding and that time was almost always dictated by something else, like school graduations or Christmas vacation.

The guy sitting ten feet from me is getting married in two days. He's been engaged a year. The formal wedding planning has only been since January, but he admits it could have been much shorter had they so chosen.

This is all besides the point; if someone really had their heart set on being married, they would have done so, especially when the possibility of that was being threatened. Marriage isn't the wedding. If this is the same-sex crowd's position, they are pathetic.

* * *

As for my statement that they are "at best, being disingenuous". I was trying to be generous since at worse they are calculating liars manipulating the courts and public opinion with a phony case.
5.27.2009 6:33pm
wht (mail):

It's not about marriage; gays, by and large, don't even really want to marry. It's about gays forcing society to recognize homosexuality as normal, most likely in an attempt to make themselves feel normal.

There are still not nearly as many interracial married couples in this country as non interracial couples, and there are lots of people in interracial relationships with no plans to marry in the immediate future, but it sure is nice that if they wanted to do so states can no deem it immoral/abnormal and forbid it. Oh and if you go back to the debates about interracial marriage around the time of loving, there are some great people back than using scripture quotes to point out just how immoral the practice is.
5.27.2009 6:33pm
Danny (mail):

It makes me kinda sad to read about these wedding preparations. My boyfriend and I have been talking about marriage lately after being together for 9 years. It would have to be in another EU country, where we don't speak the language. Our conversations are certainly not about receptions and photographers but about whether to even tell our different relatives, whether he can get enough vacation days to do it, and whether our families would even show up (especially his). His younger brother just had a huge, religious wedding lol. I think we are out to fewer than 25 people so I guess there can't be a party even if they all came. It's a happy subject but painful too in some ways.
5.27.2009 6:35pm
areader (mail):
I love the "at best" disingenuous. I would love to live in a world where I was so convinced of the fullness of my small imagination that I couldn't imagine the zillions of circumstances that would lead people to delay marriage for a few months, or, for that matter, to realize they wanted to get married relatively late in a relationship.

Anyway, I have to go call my (straight) friend whose been engaged for a year to tell her she doesn't really want to get married and doesn't get to complain if the right is taken away from her. She'll be upset, but I think she should know.
5.27.2009 6:36pm
Jim Rhoads (mail):
The "stalking horse" suspicions are interesting. I thought Boies and Olson were the on opposite sides of Bush v. Gore.

Why would Gore have hired a feaux liberal to defend him in such an important case? Why would Boies sacrifice his liberal bona fides to sabotage the notion of equality for gays in such a high visibility case?
5.27.2009 6:42pm
Leo Marvin (mail):
GatoRat:

As for my statement that they are "at best, being disingenuous". I was trying to be generous since at worse they are calculating liars manipulating the courts and public opinion with a phony case.

So you think they're just making it up? They don't really want to get married? That's funny. My advice to you is don't play poker. Your people-reading skills will cost you dearly.
5.27.2009 6:49pm
wfjag:
Dear martinned:

"What about CNN?" You and I know who Ted Olson is, and some of us even remember that his wife was killed in the plane that was crashed into the Pentagon on 9/11. There's no clear reference to who he is or his connection to the Bush #43 Administration in the CNN article you linked to. In fact, apparently there's no reference to him being a Republican.

Likewise, the MSNBC article fails to identify who Olson is -- besides that he and David Boies, "who represented opposing sides in the 2000 Bush v. Gore election challenge" filed the suit. See Gay groups say federal marriage suit premature (May 27, 2009) www.msnbc.msn.com/id/30955704/ This is the same information provided by CNN. Not even a mention of Olson's prominence in that suit -- there were, after all, quite a few attorneys on both sides.

Now, if Olson had been picked up in a Minneapolis Airport bathroom apparently soliciting for gay sex, I suspect he'd have been clearly identified as a prominent, conservative, Republican, along with his ties to the Bush #43 administration.

Strange, isn't it, that one of the more interesting aspects of this story (or, at least a "Man bites dog" aspect) isn't mentioned by the MSM. All sorts of other human interest and interesting trivia are mentioned by CNN and MSNBC, but not the facts that made this suit (correctly I think) catch the attention of Prof. Carpenter.

I'll stick by my conclusion -- the US "news" media is too busy reporting "news" to report facts.
5.27.2009 7:02pm
grasmere10 (mail):
For those interested in Plum Bob's dubiety about whether gay people really care about getting married rather than having the right to marry (the latter desire is perfectly understandable) you might want to see a the piece by that brilliant fellow Schulman in this week's weekly standard predicting that gay people will soon regard marriage rights as passe or, except for a few, judge marriage to be unable magically to make them happier, more serene, more fulfilled as couples, quite apart from the rights and wrongs of the claim.
5.27.2009 7:19pm
Anynonyno:
Why would Gore have hired a feaux liberal to defend him in such an important case? Why would Boies sacrifice his liberal bona fides to sabotage the notion of equality for gays in such a high visibility case?

Gore wouldn't have particularly cared about Boies' political beliefs. He would have wanted the best lawyer available, and Boies is reputedly very skilled. Boies' efforts on Gore's behalf don't establish much about what his political beliefs are, except that he probably thought Gore would have made a better president than Bush.

I don't know that Boies particularly cares about his "liberal bona fides" either. The guy is basically a successful corporate litigator with some liberal political connections, not a professional liberal activist lawyer.

Even if Boies is sincerely in favor of marriage equality, it's possible that he's a self-deluding guy who wants to be a hero and overestimates his own ability to get the SCOTUS to rule in his favor. (After Bush v. Gore, he should know better, but maybe he doesn't.) Likewise, the actual plaintiffs in the case are probably genuinely in favor of marriage equality and are just overoptimistic about the chance of a favorable SCOTUS ruling.

With Olson, on the other hand, I have to think the likeliest thing is that he doesn't really support marriage equality. It just seems like that's the least strange explanation of why a leading conservative lawyer would get involved in a case like this. Not only do a great many conservatives (including the president whom Olson recently served as SG) oppose SSM itself, but many others claim to oppose the establishment of rights through "judicial activism." Not only that, but most people who actually support SSM think that attempting to use litigation to establish a federal constitutional right to marriage equality would be a counterproductive strategy. So Olson isn't acting as one would expect a well-intentioned, smart SSM supporter to act.

If this isn't the best explanation of what's going on here, then can someone please shed some light on what Olson is thinking?
5.27.2009 7:21pm
Putting Two and Two...:
I'm fascinated at all these posts about the necessary complexity of planning a heterosexual wedding. What it tells me is that quite a few VCers must have those over-the-top weddings so favored by wedding planners with big mortgages to pay.

It also explains one other thing. If it really does take more than nine months to plan a wedding, the explosion of out-of-wedlock births really isn't the fault of SSM. It's all Martha Stewart's fault
5.27.2009 7:27pm
Jim Rhoads (mail):
Anon:

Look whose campaigns Boies has contributed money to determine his liberal bona fides. Hint: Few if any are Republican or conservative.

You also failed to note that the current President is also against SSM.

It is possible, isn't it, that Olson believes invidious discrimination should be fought no matter who the victim is. I suggest that Dick Cheney is much more favorable towards SSM than many so-called liberal democrats.
5.27.2009 7:51pm
Danny (mail):
A Bushie who has suddenly found his conscience? Were we all born yesterday? I want to meet Olson's "gay" plaintiffs too. I bet they aren't even really gay, or else they are some kind of collaborators paid off by some conservative group. I would question them extremely closely


that brilliant fellow Schulman


Sculman is the worst heterosexist lying sack of s**t on the Internet. Excuse me but the article was deeply dehumanizing to gays. He said in that article that gays don't care about their partner's families, and vice versa, and that we have no sexual jealousy in our relationships. My Sicilian bf and his family would knock any Americans off the shelf in all of those departments. And this Schulman found three women dumb enough to marry him. I'll take Pat Robertson over that idiot any day, at least religious fundamentalists have beliefs
5.27.2009 7:53pm
Le Messurier (mail):
Mooglar said:

And, as to your second point, even if it were true (it isn't) that the only reason gays support SSM is to try to feel "normal," what the hell is wrong with that? Because you've decided it isn't, homosexuals just have to accept that and feel bad about themselves on your say so?

They don't have to feel bad about themselves on anyone's say so but their own and there is no reason for them not to try to feel normal. However, the fact of the matter is that homosexuality is not "normal". They represent what? 5 to 10% of the population and you expect their behavior to be called "normal"? You need to apply your previously demonstrated mathematical skills to this issue.
5.27.2009 7:56pm
Danny (mail):
So green eyes are not normal? Being left handed is not normal? Normal = like the majority? Nature is a factory?
5.27.2009 8:02pm
ShelbyC:

However, the fact of the matter is that homosexuality is not "normal".


Who cares? Why do you want to pee in their corn flakes? Hell, finally the govt does something that makes other people happy, and doesn't cost me anything, and people go and rise up against it. Go figure.
5.27.2009 8:11pm
Bob VB (mail):
Had a teacher once who said "'Normal' is just another word for 'average' which is just another word for 'mediocre'. Who in the world wants to be mediocre?!"
5.27.2009 8:48pm
Cityduck (mail):
Wow.

I've never seem someone so efficiently shredded and stood up for all to see as an emperor with no clothes as has been done to GatoRat on this thread.
5.27.2009 9:12pm
cmr:
OK, couple of things. First of all, people can get married on their lunch breaks from work. You don't have to have a frilly wedding to do it. They knew there was a ticking clock (of sorts) on gay marriage, and they decided not to take that plunge. Now, that's not a knock against them, per se, but let's not act like they were completely blindsided by Prop 8 passing. Because we know that's not true. If they wanted to marry, they would've.

Second, while it isn't necessarily an argument against gay marriage, I think it would help the credibility along if more people felt there was an actual resolve to marry in the gay community. I think there are a lot of people who oppose SSM and some who are on the fence who partially justify their position based on the fact that they don't believe many of these people who are so gung-ho about marriage actually want to marry. It just seems like liberal entitlement and whining about religious overreach. The fact is, marriage comes across like a political issue and not an altruistic endeavor for important legal benefits of being in a relationship. If it was that, why aren't comprehensive CU/DP statutes enough?
5.27.2009 9:37pm
ArthurKirkland:

I've never seem someone so efficiently shredded and stood up for all to see as an emperor with no clothes as has been done to GatoRat on this thread.


If you enjoy that type of demolition, read this article (Sam Schulman, Weekly Standard) and just think about it for a few moments. No thread required.
5.27.2009 9:53pm
Danny (mail):

If it was that, why aren't comprehensive CU/DP statutes enough?


In some places, it almost is. The best civil unions in the world are the British and Scandinavian ones - because those countries were organized enough to make sure that the couples with a CU actually got all the benefits and security of marriage in real life. There is less of a push for SSM there.

In the US, CUs flopped pretty badly because so many benefits are in the hands of private companies and employers whose main office is located in another state (so won't recognize the CU although they WOULD recognize an in-state married same sex couple.. and the federal gov't doesn't recognize CUs. So the employer won't give you insurance for your "CU spouse", the hospital won't recognize the CU, the inheritance is challenged, etc...
quite unlike the UK and Scandinavia

Recently with SSM on the table, too, people's expectations seem to be rapidly shifting
5.27.2009 9:55pm
martinned (mail) (www):
@Danny: Why wouldn't the hospitals recognise Civil Unions? Aren't they completely under the jurisdiction of the state?
5.27.2009 10:02pm
Danny (mail):
Every time they don't recognize the civil union they are breaking the law.. the law is on the side of the gay couple. But the couple often has to go to court and struggle and pay legal fees.
Basically employers and agencies exploit the unfamiliarity of civil unions to cut corners, not pay benefits, be petty, it's all illegal though. Having the same institution makes it harder for them to do that.
5.27.2009 10:10pm
Charles Henderson:
This is either a retarded move, or an evil genius move.

If Olson is truly seeking to overturn Prop 8 and enact nationwide same-sex "marriage" via judicial fiat, then it's the former.

If Olson is trying to get this into Federal Court so that a precedent will be set, then this is the latter. Leftists do this all the time. It's widely accepted that Lawrence and Roe were both cases where activist lawyers found some token individuals to force their case into Federal Court.

It's just possible that Conservatives have learned from this tactic, and Olson is using the homosexual activists in the same manner, albeit to lose, rather than to win.

I'm not sure which is the case.

There is a reason that the homosexual activists have kept out of Federal Court. Simply put, the current SCOTUS isn't going to mandate SS"M". Olson knows this. The homosexual activists are in such a frenzy right now that they are not thinking straight, otherwise they would know it too.
5.27.2009 10:12pm
Charles Henderson:


As for my statement that they are "at best, being disingenuous". I was trying to be generous since at worse they are calculating liars manipulating the courts and public opinion with a phony case.




So it's OK for lefties to employ this tactic (Lawrence, Roe)but it's not OK for others to do it too?

I've said for a while that a Conservative needs to find a couple of homosexuals and force this issue into Federal Court NOW before SCOTUS changes.
5.27.2009 10:14pm
cmr:
In some places, it almost is. The best civil unions in the world are the British and Scandinavian ones - because those countries were organized enough to make sure that the couples with a CU actually got all the benefits and security of marriage in real life. There is less of a push for SSM there.

In the US, CUs flopped pretty badly because so many benefits are in the hands of private companies and employers whose main office is located in another state (so won't recognize the CU although they WOULD recognize an in-state married same sex couple.. and the federal gov't doesn't recognize CUs. So the employer won't give you insurance for your "CU spouse", the hospital won't recognize the CU, the inheritance is challenged, etc...
quite unlike the UK and Scandinavia


But Danny this isn't a reason to completely eschew the idea of civil unions and domestic partnerships, and the truth is, many companies are starting to recognize same-sex relationships. You can't use marriage as a ploy to force companies to recognize your unions, though. Companies shouldn't be forced to provide coverage. For their employee, sure, but that's not fair to use the law that way.


Recently with SSM on the table, too, people's expectations seem to be rapidly shifting


Whatever this means.
5.27.2009 10:28pm
Danny (mail):
Henderson is right, Olson is an evil genius
Let's hope the gays and lesbians snap out of it soon
5.27.2009 10:29pm
celticdragon1 (mail):
Wow. Lots of tin hat speculation here regarding the "evil" Ted Olsen.

I tend to think that the mess with 18,000 SSM relationships being legal, but no more can be recognized as such...along with growing problems associated with DOMA conflicting with same sex marriages from the North East make a SCOTUS challenge inevitable. Olsen knows the court, and Scalia may well be sceptical of DOMA at this point.
5.27.2009 10:30pm
Danny (mail):

But Danny this isn't a reason to completely eschew the idea of civil unions and domestic partnerships,



I never said it should be completely eschewed
The US so far has not gotten serious about them
5.27.2009 10:32pm
Jim Rhoads (mail):
Let's say Olson is in this for base motives. How does Boies fit in?
5.27.2009 10:33pm
celticdragon1 (mail):

You can't use marriage as a ploy to force companies to recognize your unions, though. Companies shouldn't be forced to provide coverage.



Of course not. Why should we expect companies to abide by basic norms of human decency, or even their own supposed internal policies...to say nothing of the laws of the state in which you are employed???
5.27.2009 10:35pm
Anynonyno:
It's just possible that Conservatives have learned from this tactic, and Olson is using the homosexual activists in the same manner, albeit to lose, rather than to win.

Just to point out the obvious: if this is what Olson is doing, it is not the same as what liberal activist lawyers have historically done in cases like Brown, Loving, Roe, Lawrence. Gaining the confidence of a client in order to bring a case that the lawyer intends to lose is a massive violation of legal ethics.

So it would be pretty shocking if this is what Olson is up to, but again I have to ask: what's the better explanation for this bizarre news?
5.27.2009 10:36pm
Anynonyno:
Olsen knows the court, and Scalia may well be sceptical of DOMA at this point.

Then why doesn't Olsen bring a suit challenging the constitutionality of DOMA? That might well be more winnable in the SCOTUS than the actual suit he has brought, which challenges the constitutionality of Prop 8.
5.27.2009 10:39pm
cmr:


I never said it should be completely eschewed
The US so far has not gotten serious about them


No, the gays haven't gotten serious about them. They'd rather fight the never-ending culture war about whether or not this country likes gay people than going after the substantive benefits they claim they can't live without.
5.27.2009 10:39pm
cmr:


Of course not. Why should we expect companies to abide by basic norms of human decency, or even their own supposed internal policies...to say nothing of the laws of the state in which you are employed???



Why should a company be forced on a technicality of the law to "support" a union it doesn't consider to be marriage? Then again, most major companies probably would consider civil unions and domestic partnerships for benefits purposes if the state passes them. So this is speculation.
5.27.2009 10:42pm
sonicfrog (mail) (www):

It's not about marriage; gays, by and large, don't even really want to marry. It's about gays forcing society to recognize homosexuality as normal, most likely in an attempt to make themselves feel normal.


Wow. Who died and made you an expert on gay sociology and psychology? I mean, wow, I'm gay and I didn't even know this about myself. Thanks for clearing it up.

Just so you know, my partner and I didn't get married when it was briefly legal to do so is that we didn't think the ability to do so would be taken away in the liberal state of CA. We thought we'd have time to tie the knot in a year or so. After all, we have been together for 12 + years (that's like 68 in straight years, so what would waiting another year or so matter. As it turns out, it mattered greatly.
5.27.2009 10:43pm
sonicfrog (mail) (www):
Oh, and I would hope that Boies is legally better prepared with facts than he and his law firm was for the SCO case.
5.27.2009 10:46pm
Charles Henderson:

Of course not. Why should we expect companies to abide by basic norms of human decency, or even their own supposed internal policies...to say nothing of the laws of the state in which you are employed???


Find somewhere else to work if you don't like a PRIVATE company's position on "human decency."

PRIVATE.

P R I V A T E.

This isn't the Soviet Union. We need to let Private Companies dictate their own employment contracts.

Of course homosexual activists are in this fight just so they can enlist government force on their behalf. Socialism goes hand in hand with their agenda.
5.27.2009 10:51pm
anonfun:
Brilliant strategy by Olson. To the right, there is no bigger bogeyman than SSM. I can't think of a better way to rally the conservative base to fight Obama's judicial nominees.
5.27.2009 10:59pm
Strider6122 (mail):
This lawsuit isn't necessarily destined to fail. The logic of Lawrence v. Texas http://en.wikipedia.org/wiki/Lawrence_v._Texas would seem to favor finding a right to gay marriage under the right to privacy rooted in the 14th amendment. While the majority specifically stated they weren't considering gay marraige, Scalia in his dissent clearly thought the reasoning of the majority opinion meant that gays had a right to marry. Assuming that Souter's replacement votes as he did in Lawrence and Roberts/Alito vote as one would predict, then it would be a 5-4 decision with Kennedy as the deciding vote.

Why is it so odd that Olson supports gay marriage? There are plenty of conservatives who do.
5.27.2009 11:05pm
Charles Henderson:
Kennedy had no need to go to the lengths he did to exclude SS"M" from the holding, UNLESS he didn't want the case going that far.

This is a loser if it goes in front of the current SCOTUS. Maybe a 7-2 or 8-1 loser.
5.27.2009 11:17pm
Jim Rhoads (mail):
No one on this thread is interested in answering that question, Strider. Can it be that only liberals are "pure" on this issue? I doubt it.
5.27.2009 11:29pm
Danny (mail):
Well conservatives in their modern Republican incarnation are usually flatly anti-gay, forget the marriage question. Republicans fight things like hospital visitation rights and gay teen suicide prevention programs. Conservative intellectuals may be more nuanced but then I guess they are centrist...and there are not many of them

And liberals, there is no guarantee either. They use us for votes, I've actually heard some of the worst stereotyping of gays coming from liberals, although of course no comparison with the right
5.27.2009 11:38pm
Steve-O (mail):

Compare this to divorce. Catholicism does not recognize divorce, and will not let you get married if you have been divorced.


I'm no legal expert. But has anyone ever successfully argued that divorce was a basic human right? Even no-fault divorce laws have varied from state-to-state.

Olson is arguing that this is a basic human right. If he wins, how can the state allow the Catholic Church to ignore that right?


I know a lot of people on the left (myself included) who would be fine with government getting out of the marriage business. But that's a disingenuous argument anyway: you know that all the people clamoring about how SSM will harm the institution of marriage aren't going to be okay with getting rid of legal marriage as a solution to marriage equality.


So what? SSM was once a seemingly futile battle, too. The supporters of equality chose their fight. They chose to further meddle in our private lives. That they took the "easy" road only increases my anxiety about this issue.
5.27.2009 11:54pm
Brian K (mail):
Why wouldn't the hospitals recognise Civil Unions? Aren't they completely under the jurisdiction of the state?

In theory, yes. In practice, no. As someone who was physically present for many such conversations, certain relationships are widely accepted without asking for proof. I've yet to see a wife have to provide actual proof of marriage to make a decision regarding the husbands health, and vice versa. I've yet to see the mother have to provide proof that she has sole or joint custody of the child (legally in the states I've worked only one parent needs to agree to treatment in the case of joint custody). Children are only asked to provide proof of the ability to make decisions if there are multiple of them and they disagree.

However, any friend or more distant relative must provide proof the the patient has given them the ability to make health care decisions before physicians listen to them. the same holds true for the partner in a homosexual relationship.

They clearly are not treated the same despite the laws. If the couples did not plan ahead and put the agreement in writing, something they don't have to do with marriage, they they have to go to court and any decisions are long delayed. This may amount to a minor or major inconvenience if it is not an emergency, but in emergency or trauma situations it makes a BIG difference.
5.28.2009 12:02am
Brian K (mail):
So what? SSM was once a seemingly futile battle, too. The supporters of equality chose their fight. They chose to further meddle in our private lives. That they took the "easy" road only increases my anxiety about this issue.

If you think getting the government out of marriage is such a great option, then why don't you fight for it? Where is the conservative/libertarian contingent pushing for no government recognition of any marriage as a way to rectify the differential treatment? Instead you want to deny there is a problem. Seems like you're the one taking the easy way out!
5.28.2009 12:05am
cmr:
Gay marriage is just a Marxist attempt to ruin the bourgeois family structure. Some people are just more forthcoming about it than others.

The government isn't getting out of marriage. I don't know why people keep proposing it like it's going to happen.
5.28.2009 12:21am
Randy R. (mail):
cmr: "Gay marriage is just a Marxist attempt to ruin the bourgeois family structure. '

Please do give us evidence of how we have destroyed the family structure in any of the places where SSM is legal.

If that's the best argument that you've got, you've already lost -- nobody except of shrinking number of tinfoil conpiracy theorists even spout such nonsense.

Funny that Dick Cheney and Ted Olsen are now Marxists in your view. You should tell them....
5.28.2009 1:01am
Randy R. (mail):
It's pretty funny -- gays and our supporters,like legistators in Maine, Connecticut, Vermont, New Hampshire, and New York, are all Marxists trying to destroy the family. That's why we spent millions of dollars trying to defeat Prop. 8, because in these hard times, we still make sure we set aside our tithe not to poverty programs, or arts programs, or to other charitable organizations,but to a ballot issue that has as it's sole purpose to destroy the family.

Because, you know, we gays want to destroy our own families, especially the ones that went to all the trouble to adopt the kids that the staight people didn't want anymore. And when you think about it, what BETTER way to destroy marriage than to allow a handful of gay people to get married! AFterall, it's just a few that actually get married -- but the power of those ceremonies is enough to crumble an ancient and mighty institution that has survived for thousands of years. Just look at Holland, Beligium, Spain, S. Africa, Denmark, or Sweden -- no one is getting married anymore, they have turned into communist (or fascist, take your pick) states where good religious straight people are thrown in jail, and are therefor no longer able to take care of their kids. Why, the child beggars are heartrending -- good thing there are no child beggars in good traditional countries, like Mexico or India, which thankfully still prohibit SSM. And three hurrahs for India for preserving arranged marriage, which is truly traditional.

Thanks for the laugh, cmr! I really needed it after traveling 28 hours from China, where SSM is sadly not legal. I'm sure you'll let them know that it is part of their Marxist agenda, and they will reorder their laws shortly.
5.28.2009 1:09am
Danny (mail):
Welcome back from China Randy! :)
It was getting lonely celebrating a lifestyle choice that leads to bestiality all by myself
I hope you brought back some of those Marxist children's books I requested?
5.28.2009 1:17am
Randy R. (mail):
You're welcome! I know, it's tough destroying marriage all by yourself. I'll rally the troops. Hey, does your b/f have a brother?
5.28.2009 1:54am
Soronel Haetir (mail):

and gay teen suicide prevention


What about the block (like myself) that doesn't care about suicide prevention at all? I say go for it.
5.28.2009 2:09am
cmr:
cmr: "Gay marriage is just a Marxist attempt to ruin the bourgeois family structure. '

Please do give us evidence of how we have destroyed the family structure in any of the places where SSM is legal.

If that's the best argument that you've got, you've already lost -- nobody except of shrinking number of tinfoil conpiracy theorists even spout such nonsense.

Funny that Dick Cheney and Ted Olsen are now Marxists in your view. You should tell them....


Notice I said "attempt". It's not fully legal yet, and it hasn't been legal long enough.

Randy, you know that's not "the best I've got". Don't front.

I wasn't aware Dick Cheney supports gay marriage now.
5.28.2009 2:24am
Randy R. (mail):
Steve-O:"Olson is arguing that this is a basic human right. If he wins, how can the state allow the Catholic Church to ignore that right?"

Owning a gun is a basic human right, apparently, especially after Heller. How can the Catholic Church prevent guns in their churches then? Condoms can be sold everywhere nowadays, at least since the 60s. How can the church survive knowing that people have a right to buy condoms, in direct violation of church law?
5.28.2009 2:29am
cmr:
It's pretty funny -- gays and our supporters,like legistators in Maine, Connecticut, Vermont, New Hampshire, and New York, are all Marxists trying to destroy the family. That's why we spent millions of dollars trying to defeat Prop. 8, because in these hard times, we still make sure we set aside our tithe not to poverty programs, or arts programs, or to other charitable organizations,but to a ballot issue that has as it's sole purpose to destroy the family.


Well, no, you guys spent millions of dollars to defeat Prop 8 because you were, quite honestly, stupid and misled.

And do read Das Kapital and Marx's view on bourgeois marriage.

Because, you know, we gays want to destroy our own families, especially the ones that went to all the trouble to adopt the kids that the staight people didn't want anymore. And when you think about it, what BETTER way to destroy marriage than to allow a handful of gay people to get married! AFterall, it's just a few that actually get married -- but the power of those ceremonies is enough to crumble an ancient and mighty institution that has survived for thousands of years. Just look at Holland, Beligium, Spain, S. Africa, Denmark, or Sweden -- no one is getting married anymore, they have turned into communist (or fascist, take your pick) states where good religious straight people are thrown in jail, and are therefor no longer able to take care of their kids. Why, the child beggars are heartrending -- good thing there are no child beggars in good traditional countries, like Mexico or India, which thankfully still prohibit SSM. And three hurrahs for India for preserving arranged marriage, which is truly traditional.


LOL. It's so easy to get under your skin. And you'll deny it, but your passive-aggressive rambling is really funny.

Thanks for the laugh, cmr! I really needed it after traveling 28 hours from China, where SSM is sadly not legal. I'm sure you'll let them know that it is part of their Marxist agenda, and they will reorder their laws shortly.



Don't even try it. You're upset and hurt that I called gay marriage part of the Marxist agenda. It's OK. I understand you're sensitive, Randy. I'm sorry for hurting your feelings.
5.28.2009 2:30am
Randy R. (mail):
One of the reasons the anti-gay people are freaking out is that they know that they are losing. Once SSM is actuallly legal in a few jurisdictions, they know that people will see that our country isn't turning Marxist anytime soon (or, at least not because of SSM), that people are still getting married and having and raising children.

It used to be that the religious bigots used to say that no one can have sex outside of marriage. What about gays? Oh, well, you guys can't get married, so that means you can NEVER have sex. Sorry guys! It's nothing personal, really, it's just that sex is for marriage, and since you can't get married, well, isn't that a hoot.

It was merely an argument to make gays believe that they can never have sex. Not that it worked, mind you, but it did perhaps work on some gays to make them feel inferior, not normal, and all the other things that anti-gay crowd wants us to believe.

Well, now gays CAN get married, so that argument has completely fallen apart. So we turned their own argument on their head, and no one is saying gays can't have sex anymore because they can't get married. Instead, they are going back to their time-honored traditions of calling us 'not normal', "immoral' and so on. But that sounds so 70s, and it's not working anymore. people laugh when they hear that.

i suggest that you guys find another group to hate. I hear that hatred towards Latinos is rising due to the new SCOTUS pick. Why don't you folks go over there and leave us alone?
5.28.2009 2:36am
Randy R. (mail):
Really? Marx was in favor of SSM? Why didn't the Soviets make it legal then? What a better blow to bourgous values than to promote homosexuality in the Soviet Union?

"Well, no, you guys spent millions of dollars to defeat Prop 8 because you were, quite honestly, stupid and misled."

I'm very glad that the money we spent in Maine, Massachusetts, Connecticut, Vermont, NH and other places was, quite honestly, smart and right on the money. Because it obviously worked.

Next up on our agenda -- poisoning apple trees so that pie can no longer be made. Yes, we hate America THAT much!
5.28.2009 2:40am
cmr:
One of the reasons the anti-gay people are freaking out is that they know that they are losing. Once SSM is actuallly legal in a few jurisdictions, they know that people will see that our country isn't turning Marxist anytime soon (or, at least not because of SSM), that people are still getting married and having and raising children.


Oh please. Keep saying that...maybe it will come true. Almost two-thirds of the states have voted against gay marriage, and the places that allow it are places most gays don't live or don't want to live anyway. Anti-gay-marriage people are "freaking out" because you guys are legalizing gay marriage in small, liberal New England states and are afraid of this issue going to the SCOTUS. Oh yeah, we're the ones that are scared. Whatever.

It used to be that the religious bigots used to say that no one can have sex outside of marriage. What about gays? Oh, well, you guys can't get married, so that means you can NEVER have sex. Sorry guys! It's nothing personal, really, it's just that sex is for marriage, and since you can't get married, well, isn't that a hoot.


Probably because both acts are said to be sinful, or not proscribed by the Bible. It's not bigoted. Bigoted is vandalizing churches, race-baiting black people, and setting holy books on fire because you didn't get your way.

It was merely an argument to make gays believe that they can never have sex. Not that it worked, mind you, but it did perhaps work on some gays to make them feel inferior, not normal, and all the other things that anti-gay crowd wants us to believe.


I can want you to believe that if you drink milk fives times a day, you'll turn into a cow. You're the dummy for believing it will happen.

Of course, anal sex not being natural isn't just Christian science run amok, and MSM accounting for 71% of all men in this country with HIV/AIDS doesn't do much to reconcile the idea that being gay is something of a moral aberration. But you know, peace and love :).

Well, now gays CAN get married, so that argument has completely fallen apart. So we turned their own argument on their head, and no one is saying gays can't have sex anymore because they can't get married. Instead, they are going back to their time-honored traditions of calling us 'not normal', "immoral' and so on. But that sounds so 70s, and it's not working anymore. people laugh when they hear that.


Because you force the government and bleeding heart liberal clergymen to call your unions marriage doesn't mean they accept it. The whole idea that being gay isn't normal, and marriage is intrinsically one thing and not something else (same-sex, for one) are two distinct ideas proscribed in the Bible.

I don't know why you're trying to loophole the Bible. It's not like you care about what it says in the least, anyway, nor do you care about Christians or other religious people who don't spit on the Biblical verses that aren't that charitable towards homosexuals.

i suggest that you guys find another group to hate. I hear that hatred towards Latinos is rising due to the new SCOTUS pick. Why don't you folks go over there and leave us alone?



Keep telling yourself that Randy. I love how the answer to the idea that gays aren't normal is for them to act like dissent with their political/policy ideas is solely based on animus, to think tongue-in-cheek, strawman, bastardized versions of actual arguments are acceptable forms of debate, and to justify their antagonism because they're fighting for "civil rights" (that they already have) but to criticize other people's antagonism, if those people feel justified because of their position, as being bigoted.

In other words, be a flouncing, put-upon, victimized hypocrite who can't see past what he wants. Be prideful. That'll really make those stodgy social conservatives like you, won't it?
5.28.2009 2:52am
cmr:
Really? Marx was in favor of SSM? Why didn't the Soviets make it legal then? What a better blow to bourgous values than to promote homosexuality in the Soviet Union?


That was a complete non-sequitur. Marx might've been in favor of SSM; he didn't say it in Das Kapital. Still, the whole idea that people want to uphold traditional marriage, and people who support gay marriage are fine with concluding they're bigoted homophobes who need to stop oppressing people and taking away rights...smacks of Marxism. Gays have gone from freedom oriented, anti-bourgeois, just-let-me-be liberals to neo-fascists in 1 1/2 generations. Now they can't exist in society without the government forcing people to like them, and they don't think the people should even be able to vote on issues they find to be "inalienable".

"Well, no, you guys spent millions of dollars to defeat Prop 8 because you were, quite honestly, stupid and misled."

I'm very glad that the money we spent in Maine, Massachusetts, Connecticut, Vermont, NH and other places was, quite honestly, smart and right on the money. Because it obviously worked.

Next up on our agenda -- poisoning apple trees so that pie can no longer be made. Yes, we hate America THAT much!


I wouldn't put it past you. And yes, liberal NE states that have 12 lesbian couples a piece will gladly bend to lobbyist money. I'm unsurprised.
5.28.2009 3:03am
18 USC 1030 (mail):
Does anyone really believe Ted Olson is so evil that he would find a client to represent for the sole purpose of having his client lose the case? Ted Olson, whether you agree with some of the positions he's taken in the past, is an extremely intelligent lawyer. He's well respected. Does anyone really believe that he would give that up for getting the Supreme Court to create a precedent against SSM? I'm sorry, I don't buy that an intelligent lawyer with his experience would be willing to throw his professional reputation away like this. But, but, his political reputation...I don't buy that either. Who in their right mind would pull this stunt when the result will surely be disbarment and likely a malpractice lawsuit?

Olson is not a political hack. He's had many political jobs, yes. But he is not a hack and it makes little sense that he'd give up his reputation for this purpose.
5.28.2009 9:32am
martinned (mail) (www):
@wfjag: Now we know. This is what the New York Times, surely the evilest of all the evil MSM, wrote about this case, on page A1 of today's paper:


Bush v. Gore Foes Join to Fight Gay Marriage Ban
By JESSE McKINLEY
SAN FRANCISCO — The David and Ted show is back in business.

Eight and a half years after their epic partisan battle over the fate of the 2000 presidential election, the lawyers David Boies and Theodore B. Olson appeared on the same team on Wednesday as co-counsel in a federal lawsuit that has nothing to do with hanging chads, butterfly ballots or Electoral College votes.

Their mutual goal: overturning Proposition 8, California’s freshly affirmed ban on same-sex marriage. It is a fight that jolted many gay rights advocates — and irritated more than a few — but that Mr. Boies and Mr. Olson said was important enough to, temporarily at least, set aside their political differences.

“Ted and I, as everybody knows, have been on different sides in court on a couple of issues,” said Mr. Boies, who represented Al Gore in Bush v. Gore, the contested 2000 vote count in Florida in which Mr. Olson prevailed for George W. Bush. “But this is not something that is a partisan issue. This is something that is a civil rights issue.”

The duo’s complaint, filed last week in Federal District Court in San Francisco on behalf of two gay couples and formally announced Wednesday at a news conference in Los Angeles, argues against Proposition 8 on the basis of federal constitutional guarantees of equal protection and due process.

In the end, the two lawyers suggested, the case might take them, again, to the United States Supreme Court. While neither man claimed any special connection to the gay community — they are working “partially pro-bono,” Mr. Olson said — both said they had been touched by the stories of the same-sex couples unable to marry in California.

“If you look into the eyes and hearts of people who are gay and talk to them about this issue, that reinforces in the most powerful way possible the fact that these individuals deserve to be treated equally,” Mr. Olson said at the news conference.

“I couldn’t have said it better,” said Mr. Boies, patting Mr. Olson on the back.

Not everyone in the gay rights movement, however, was thrilled by the sudden intervention of the two limelight-grabbing but otherwise untested players in the bruising battle over Proposition 8. Some expressed confusion at the men’s motives and outright annoyance at the possibility that a loss before the Supreme Court could spoil the chances of future lawsuits on behalf of same-sex marriage.

“It’s not something that didn’t occur to us,” Matt Coles, the director of the LGBT project at the American Civil Liberties Union, said of filing a federal lawsuit. “Federal court? Wow. Never thought of that.”

But Mr. Olson said that their lawsuit — which also seeks an injunction blocking the marriage ban until the matter can be resolved — fell squarely in the tradition of landmark cases like Brown v. Board of Education.

“Creating a second class of citizens is discrimination, plain and simple,” said Mr. Olson, who served as solicitor general under Mr. Bush. “The Constitution of Thomas Jefferson, James Madison and Abraham Lincoln does not permit it.”

In a telephone interview, Mr. Olson outlined a possible legal strategy: “if the preliminary injunction is denied, we could appeal promptly to the Ninth Circuit Court,” a level below the Supreme Court. Depending on decisions there, the case could go even higher.

“That’s certainly a possible scenario,” he said.

While five states now allow same-sex marriage, the federal government does not, and federal recognition has long been considered the Holy Grail in gay rights circles.

On Wednesday, veterans of the legal battles over same-sex marriage questioned the suit’s timing, particularly when a conservative majority holds sway in the Supreme Court.

“We think its risky and premature,” said Jennifer C. Pizer, marriage project director for Lambda Legal in Los Angeles, adding that a loss at the Supreme Court level could take decades to undo.

Laurence H. Tribe, an expert on constitutional law at Harvard, called the suit “a bold measure,” adding that “the fact that it’s being advanced by people at both ends of the ideological spectrum gives it a certain profile.”

Mr. Tribe said the question of timing could be argued from both sides.

“There’s a national trend which is obvious, with Vermont, Maine and Iowa,” he said, citing states that have recently legalized same-sex marriage. “But pushing it right now in front of a conservative court is not necessarily the wisest thing to do.”

Ms. Pizer also seemed a touch befuddled by her starrier, more publicized colleagues’ unexpected interest in issues she has spent her professional life arguing. “We have developed these strategies from working on these issues for decades,” she said. “And our strategy grows from that work.”

But Mr. Olson seemed confident that the makeup of the Supreme Court was right because of the presence of Justice Anthony M. Kennedy, pointing to two cases in which gay rights groups prevailed — a sodomy case in Texas and a constitutional ban on local antidiscrimination laws in Colorado — in which Justice Kennedy wrote the majority opinion. “We studied this very, very carefully,” he said, adding that it was difficult to tell clients, “‘Why don’t you go back and wait another five years?’”

Opponents of same-sex marriage, meanwhile, met the news of another legal challenge with a three-sentence statement dripping with fatigue. Just on Tuesday, the California Supreme Court turned back a challenge to the proposition’s constitutionality.

“The will of the voters is under attack once again,” read a statement attributed to Andrew P. Pugno, the general counsel for Protectmarriage.com, the leading group behind Proposition 8. “This new federal lawsuit, brought by a pair of prominent but socially liberal lawyers, has very little chance of succeeding. But we will take it seriously.”

The phrase “socially liberal” might come as a surprise to Mr. Olson, of course, who found himself fending off a question on Wednesday about his membership in the conservative Federalist Society.

“I don’t think I’ve ever been part of any organization that was antigay,” he said, explaining that the Federalists were for individual rights.

Hired by a newly formed advocacy nonprofit, American Foundation for Equal Rights, Mr. Boies and Mr. Olson stood alongside the two gay couples on whose behalf the suit was filed, and confessed a touch of déjà vu.

“I must say, being up here on a platform with Ted Olson and all these lights makes me want to urge everybody to count every vote,” said Mr. Boies, the founder and chairman of Boies, Schiller &Flexner, a firm based in New York.

Mr. Olson, a lawyer with Gibson, Dunn &Crutcher in Los Angeles and Washington, said the two men had “known each other a little bit for a long time,” but have “known each other more closely since Bush v. Gore.” The two have grown so close, in fact, that Mr. Olson said their families intended to go on a bicycle trip to France together.

“We do drink wine once in a while,” Mr. Olson said.
5.28.2009 9:34am
devil's advocate (mail):
Danny,

I think that Schulman's point was not that various incidents of kinship might never manifest themselves with gay union, but that they were not logically or normatively incident to those couplings.

I'm not suggesting that your personal experience of kinship and jealously, i.e. guardianship over the sexual exploits outside marriage to the extent that can be equated to the protectionist attitude toward female sexuality, are the exception that proves the rule.

Certainly somebody who has been married 3 times concedes implicitly that the march of 'progress' in this arena is not strictly a consequence of society's grappling with Same Sex Marriage.

But I think the statistic about the differing age norm for hetero and homosexual marriages (13 yrs older for gay couples)is a significant beacon as to the very differences folks are fighting abou -- not to mention sonicfrog's admission in this regard:


we have been together for 12 + years (that's like 68 in straight years,


Regardless of the purity of the messenger, or whether indeed he is a sack of "s@#t" as you allege, such ad hominem does not rebut his very measured and thoughtful address of the context of marriage.

Maybe SSM is more a flashpoint for us to grapple with our fidelity to these norms. In the sense that some allege that opponents of SSM should look in the mirror, that may be more the point than it appears on the surface of this debate.

Schulman certainly captures the tension in suggesting that people cannot at once protest discrimination against their minority characteristics and contemporaneously lay claim to a normative force in their behavior -- at least without attempting more dispassionate discourse with the type of argument that Schulman advances.

I do think that points about adoption and positive results for children - somewhat necessarily incidents of heterosexual behavior if not always heterosexual kinship rituals - for instance augur in favor of most analogous homosexual institutions.

But this requires being willing to grapple with relevance and utility of the normative kinship ideals rather than dismissing them as anti-gay poison pills of western civilization.

For me, the gravamen of Schulman's contribution to these arguments jump out as:




[Gays] will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect. . . .

As kinship fails to be relevant to gays, it will become fashionable to discredit it for everyone. . . .

There is no doubt that women and children have suffered throughout human history from being over-protected and controlled. The consequences of under-protection and indifference will be immeasurably worse. In a world without kinship, women will lose their hard-earned status as sexual beings with personal autonomy and physical security. Children will lose their status as nonsexual beings. . . .

5.28.2009 9:54am
Crackmonkeyjr (www):
Steve-O: I'm pretty sure that divorce is considered to be a fundamental right, although certain reasonable restrictions can be placed on it. I'm also pretty sure that remarrying after divorce is a fundamental right.

What I can provide as an example though is that for years after Loving v. Virginia, the Mormon Church continued to oppose interracial marriage, something clearly defined as a fundamental right. This has changed now, but not due to legal action.
5.28.2009 9:56am
martinned (mail) (www):
@Crackmonkeyjr: Actually, under Jonhston and others v Ireland, an ECtHR ruling of December 18, 1986, there is no right to divorce found in either art. 12 (right to marry), art. 8 (right to family life), art. 14 (ban on discrimination) or art. 9 (freedom of conscience, etc.) of the Convention. So whether a right to divorce exists at all, and, if so, whether it is fundamental, is hardly a foregone conclusion.

(A few years after that case, Ireland repealed by a very close referendum, its constitutional ban on divorce. So a case like this is unlikely to come up again in the future.)
5.28.2009 10:08am
Crackmonkeyjr (www):
Martinned: I hate to sound like an asshole American, but this conversation is clearly about American law, not Irish or European law. Fundamental rights are a term of art in American law that has no real relationship to what the Eurpoean Court of Human Rights considers to be a right or not.
5.28.2009 10:16am
mooglar (mail):
Le Messurier:


They don't have to feel bad about themselves on anyone's say so but their own and there is no reason for them not to try to feel normal. However, the fact of the matter is that homosexuality is not "normal". They represent what? 5 to 10% of the population and you expect their behavior to be called "normal"? You need to apply your previously demonstrated mathematical skills to this issue.


Actually, a trait shared by 5% to 10% of the population is a significant number. That's between one in ten and one in twenty people. As noted above, the incidence of blue eyes and green eyes, respectively, according to wikipedia are both around 1 in 6 or 16.6%. Yet I rarely hear people with blue or green eyes called weird or abnormal. And I should know, as I have green eyes.

Wikipedia puts the incidence of left-handedness at 8-15%. True, being left-handed was once considered abnormal, but today we generally find that idea quaint and/or dumb. We now accept left-handedness as "normal," though its incidence is similar to that of homosexuality.

Estimates of the number of people who collect stamps puts it probably around the same number as homosexuals. Are stamp-collectors "abnormal?" The government is the primary purveyor of stamps and even encourages stamp collecting. Is it wrong for the government to "endorse" a non-"normal" group like stamp collectors? If the issue is that homosexuality is "abnormal" because only 5% to 10% of the population are homosexual, how is that any different?

I would also point out that if only 5% to 10% of the population buys your book, goes to see your movie, or watches your television show, it will be an enormous runaway success. Ask Nielsen or any demographer whether 5% to 10% of the population is actually a small slice or an enormous chunk.

Only about 13% of deaths are caused by cancer, yet we don't see cancer as a small, unimportant issue. We aren't shocked when someone dies of cancer, are we? It's bad to have cancer, obviously, but do we think it is "abnormal" to get cancer and blame the person who is ill? I think not.

In any case, I don't think the issue of why some find homosexuality to not be "normal" is not its rate of incidence. After all, many of the people who oppose homosexual rights are afraid that by making things like SSM legal the numbers of homosexuals will (by some unexplained, unknown mechanism) increase. And yet, if the reason they think homosexuality is not "normal" is its low rate of incidence, then an increase in the number of homosexuals shouldn't be a problem, because then it would be more "normal" and, in theory, they should no longer have an objection. But, in truth, opponents of homosexual rights become more threatened by the idea of homosexuality becoming more common, so clearly they think homosexuality is not "normal" for reasons other than its rate of incidence.

The truth is that a lot of heterosexuals find homosexuality somehow threatening, disturbing, or "icky." Some just don't want to be exposed to something that disturbs them... I think these are the ones who say things like, "Why do they have to stick in my face?" because a gay couple is holding hands in public. (Notwithstanding that they don't think there's anything wrong with heterosexual couples holding hands in public and would scoff at the idea that they are only holding hands to "stick it in" other peoples' faces). I think they oppose homosexual rights because they think they'll be exposed to homosexuals more and get grossed out by them. Then, there are those who find the very idea of homosexuals and homosexual sex repugnant, and the thought that someone might be doing those things, even in private, is too much (they say) to bear. And therefore, to protect themselves, they would not only have gays be in the closet but would also outlaw such behavior. Because their peace of mind depends, apparently, on not having to consider that someone, somewhere, might be having gay sex.

What I mean to say is that the various attempts to make rational arguments for why homosexuality isn't "normal," like appeals to its rate of incidence or trying to claim it is somehow harmful to one's health, are really just rationalizations. The fact is that some people think it is weird and wrong just because they do, because they don't like it, and for no other reason. But they know that it's not much of a legal or moral argument to say, "I just don't like it, so let's outlaw it," so they try to appeal to other things. But none of them are the real issue. The real issue is they think it is icky and think that they have the right to never be offended or grossed out or disturbed by others' behavior, even if that behavior has nothing to do with them at all.
5.28.2009 10:19am
martinned (mail) (www):
@Crackmonkeyjr: I hate to sound like an asshole lawyer, but the conversation is clearly not about American law beyond mere speculation. Unless I'm mistaken, there is no basis whatsoever to make any claims about a right to divorce in American Constitutional law, since there is no case law on the matter, due to mootness. (Correct me if I'm wrong, as usual.) Because no US jurisdiction in modern times tried to outlaw divorce, one can do more than speculate what the courts would say if one of them did. Such general musings would be greatly helped by including rulings from foreign jurisdictions that have considered the issue.

Not to redo the whole foreign case law discussion all over again, but my reference to the Johnston case shows that it is certainly conceivable that a court might deny that there is a right to divorce. That is the proposition for which I offered it as evidence, and once that proposition has been accepted, the burden of proof shifts back to the person claiming there is a right to divorce to offer evidence for that claim.

For the record, I think you're probably right. I think it is highly unlikely that the US Supreme Court would sign off on a ban on divorce, even if it were practically possible to do such a thing. But this conclusion is not self evident, and requires proof beyond ipse dixit.
5.28.2009 10:30am
Crackmonkeyjr (www):
Martinned: Boddie v. Connecticut, 401 U.S. 371 - States may not require indigents to pay filing fees for divorce because it is a fundimental right, or something to that effect.
5.28.2009 10:36am
martinned (mail) (www):

Martinned: Boddie v. Connecticut, 401 U.S. 371 - States may not require indigents to pay filing fees for divorce because it is a fundimental right, or something to that effect.

Now we're making progress. (The case is here, BTW.) I'm not sure if that case entirely seals it, since it seems to be about discrimination against the poor more than about divorce per se. (Cf. the concurrence by Douglas, who would treat it explicitly as such.) Still, the case is a good precedent for the proposition that, since the state has monopolised marriage, they can't foreclose access to divorce.
5.28.2009 10:51am
Crackmonkeyjr (www):
Even if we leave divorce behind, we can see a whole range of requirements that the Catholic Church imposes on certain of its members that are clearly violations of fundamental rights. The Church prohibits priests and other members of the clergy from marrying, procreating and owning property. Each of these are well established to be fundamental rights under US jurisprudence. However, another fundamental principal of US jurisprudence is that the government basically does not mess with Church doctrine.

By any rational exploration of US jurisprudence relating to the guarantee of freedom of religion in the First Amendment, there is no chance that legalizing SSM will in any way prohibit religious institutions from deciding for themselves whether to perform or consecrate SSM. The entire idea is an utter red herring.
5.28.2009 11:05am
Danny (mail):

I think that Schulman's point was not that various incidents of kinship might never manifest themselves with gay union, but that they were not logically or normatively incident to those couplings.


Which is a ridiculous statement. If you marry someone, you get in-laws. I'm sorry I was impolite before but it makes me mad when pseudo-philosophers come out with statements about how gays don't have the same emotions as straight people. If we are cut (by our mother in laws) do we not bleed?



[Gays] will discover that it is not the wedding vow that maintains marriages, but the force of the kinship system. Kinship imposes duties, penalties, and retribution that champagne toasts, self-designed wedding rings, and thousands of dollars worth of flowers are powerless to effect. . . .


I think this is an important point, in my experience the in-laws are actually one type of "glue" holding together the relationship. But it's bizarre that Schulman chose this, since this is one area where gays and straight couples are the same. Much more than sexual orientation, it's the cultural background and geographical proximity of the in-laws that make the difference. I know many Americans back home who live on the other side of the country from their in-laws, so they have little influence on the son/daughter in law. But in for example a Mediterranean country where there is not the same individualistic culture of living "on your own", you go directly from your parents to living with your significant other or marrying (and living probably 1 km from their house) then sweet Jesus do you get some hard-core kinship. My boyfriend's parents both visit their own 80-90 year old parents for about two hours every single day. What Americans do that? Americans would probably put them in a nursing home.

Schulman is also obsesses with the "repressive" side of the kinship system: the control of the son/daughter-in-law's whereabouts and sexuality (which according to him we are "blissfully free of" - tell it to my bf and in-laws who act like I am tearing their hearts out if I miss one Sunday lunch to go to the beach by myself for two hours). If you live in a nepotistic or corrupt country, your in-laws are a fundamental resource and safety net: they may well find you a job, and a house, a good deal on a car, etc. Most Americans would not be able to handle this level of kinship, where you are almost helpless without local family connections. And it's often economic problems that create tension within the couple, so the kinship system smooths out those risks, especially for a young couple

He says things like this:


Can we imagine Frank's family and friends warning him that "If Joe were serious, he would put a ring on your finger"? Do we ask Vera to stop stringing Sally along?


Until now, we didn't have the language of symbols and rings etc. They would say "if Joe were serious, he would ask you to move in with him" etc.

Schulman is just projecting his dehumanizing prejudice on gays by imagining that we don't have the same goals, challenges and realities in our relationships. It's a truly shameful piece of bigotry
5.28.2009 11:07am
martinned (mail) (www):

there is no chance that legalizing SSM will in any way prohibit religious institutions from deciding for themselves whether to perform or consecrate SSM. The entire idea is an utter red herring.

Which is why it is good strategy to pack SSM Bills full of retellings of SCOTUS case law, writings of the Founding Fathers, etc. It looks nice and it has no down side.

Those conservatives that understand that have moved their arguments to discrimination laws. Obviously there are many libertarians who genuinely feel that private businesses should be free to discriminate against blacks, gays, women, the elderly or republicans to their heart's content, but somehow the indignation about that New Mexico case seems to stretch well beyond the libertarian annointed.
5.28.2009 11:13am
wfjag:
Gee martinned, you're just out to prove my point -- the MSM is too busy reporting "news" to report facts. What did the NYT report about Olson?

Read what's in the article:

1. He represented Bush in Bush v. Gore;
2. He's an attorney with Gibson, Dunn &Crutcher in Los Angeles and Washington;
3. He knows, and apparently has become friends with Boies, who represented Gore in Bush v. Gore; and
4. That Olson (and Boies) are a couple of attorneys retained by "a newly formed advocacy nonprofit, American Foundation for Equal Rights" and held a press conference.

So, all that is reported is that Olson and Boies are a couple of lawyers out for publicity for themselves and the suit they filed. (Big yawn!)

None of this "puts the lie to the mantra that all conservatives are homo-phobes" and the MSM isn't reporting Olson's conservative, Republican credentials. That was my prediction, and while you apparently don't wish to admit it, you're doing an excellent job of proving its accuracy.

It's not like the NYT doesn't know who Olson is. If you look at the article linked under Theodore B. Olson in the article you linked, you'll find that the NYT states:


He was rewarded with an appointment as Solicitor General, the Justice Department official who argues cases on behalf of the administration before the Supreme Court.

Even before Bush v. Gore, Mr. Olson long served as the leading appellate litigator of the Republican establishment.

In that role, he has spent much of his career trying to get courts to fashion new, conservative rulings that limit the reach of environmental regulation and soften guidelines on issues like affirmative action and sex discrimination. And in most of those cases, his opponent has been the federal government.


You get this via a hyperlink -- but, there's no hyperlink in the paper version of the NYT -- which is the version that most people still read. And, I don't believe that a hyperlink is considered to be part of the article on page A-1 of today's NYT.

So, the rest of the story is that someone who was "the leading appellate litigator of the Republican establishment", who spent much of his career "trying to get courts to fashion new, conservative rulings" and "soften guidelines on issues like affirmative action and sex discrimination" now regards SSM as a civil rights issue. There's the "Man bites dog" aspect of the story -- an aspect that in this story the US MSM appears to be studiously avoiding, whereas in most stories that type of angle is reported in the first couple of paragraphs. But, that can't be done in this story, since it would run counter to the mantra that conservatives and Republicans are all homophobes.
5.28.2009 11:21am
martinned (mail) (www):
@wfjag: Could you be any more paranoid? You do realise this is a newspaper article, not a biography? They wrote this:


The phrase “socially liberal” might come as a surprise to Mr. Olson, of course, who found himself fending off a question on Wednesday about his membership in the conservative Federalist Society.

And they wrote that he is/was a loyal Bushie. How much clearer do you want it in the main article on the story?
5.28.2009 11:25am
Hah!:
Who in their right mind would pull this stunt when the result will surely be disbarment and likely a malpractice lawsuit?


Good luck on proving that. You'd never be able to prove what a lawyer's intent was in bringing a case.

That's what makes this such an evil genius move.
5.28.2009 12:33pm
Danny (mail):
These two came together, and suddenly out of nowhere a new little gay rights organization appears with them, that has no connection to the rest of the movement or to historical gay organizations...

For his intent, I see that he was a hero to the Bush administration. Do we really need any more information? Correct me if I'm wrong, but Bush considered him for a high appointent but Olson was considered too conservative BY BUSH STANDARDS

Now suddenly he "regrets" the homophobia of the Bush years. Give me a f'ing break. Crocodile's tears.
5.28.2009 1:32pm
Danny (mail):
And you could build an army with all of the ex-Bushie lawyers who should have been disbarred ..
5.28.2009 1:34pm
martinned (mail) (www):
5.28.2009 1:39pm
Putting Two and Two...:

“I don’t think I’ve ever been part of any organization that was antigay,” he said, explaining that the Federalists were for individual rights.


Uh... hasn't Ted been a member of the GOP for decades?
5.28.2009 2:19pm
Just an Observer:
martinned,

To borrow a phrase from wfjag, don't expect MSM-phobes to accept this. It doesn't fit the story line. They are much too busy claiming "news bias" to consider facts.
5.28.2009 2:36pm
Danny (mail):
I nominate Olson for an acting Emmy
5.28.2009 3:07pm
Randy R. (mail):
Thanks, cmr. I knew that if I provoked you, you would eventually show your true colors, and I'm glad that's finally out in the open.
5.28.2009 4:15pm
Lymis (mail):
Steve-O, "If he wins, how can the state allow the Catholic Church to ignore that right?"

Sorry, wrong.

It is not that the Catholic Church bans divorce. The Church has no say in preventing a civil divorce, and doesn't claim it does. What it actually says is that a civil divorce does not end the marriage, and they will not marry someone who has a living spouse.

The Catholic Church does not allow RE-MARRIAGE. (Setting aside annulments as a separate topic.)

The Church cannot prevent a civil remarriage, but it has every right not to perform a religious one, or allow priests to act as agents of the state in performing them.

And the Church has been doing this all along. Same-sex marriage adds nothing new to the mix. The Church will not conduct marriages for non-Catholic couples, for couples where one or both have a living ex-spouse, or even for people that the priest feels are not serious enough about getting married - and no lawsuits.

How can this be allowed to stand? Because the Church has no say whatsoever in the eligibility of two people to civilly marry. Legally, their only participation is to sign the paperwork that gets filed at the courthouse. Since they have no part in the process, they can't be sued for not engaging in it.

And that applies to ALL denominations, most of which don't perform weddings for people who are not part of their tradition, however they define it.

Sure, there might be lawsuits brought by people who don't believe this, but there is way too much legal precedent for this to be anything but a red herring.
5.28.2009 5:38pm

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