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You are here: Home / Politics / Domestic Politics / Prop 8 To Undergo Equal Protection Test

Prop 8 To Undergo Equal Protection Test

by John Cole|  May 27, 20097:22 pm| 83 Comments

This post is in: Domestic Politics

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Jonathan Turley reports that Prop 8 will receive some scrutiny in federal court, and some heavyweights are on the team:

Theodore B. Olson, the U.S. solicitor general under Bush and his lawyer in Bush v. Gore, and David Boies, who represented former vice president Al Gore in that case, have joined forces to challenge Proposition 8 in federal court after this week’s loss in the California state court system.

A successful challenge would circumvent the need for a state by state fight on the issue. The Supreme Court has long dodged the question, even in its historic Lawrence v. Texas decision.

They are challenging the prohibition of same-sex marriage as a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution.

Olson stated” “For a long time I’ve personally felt that we are doing a grave injustice for people throughout this country by denying equality to gay and lesbian individuals. The individuals that we represent and will be representing in this case feel they’re being denied their rights. And they’re entitled to have a court vindicate those rights.”

BTW, I’ve been reading Turley’s blog off and on for quite a while now and am adding it to the blogroll. Turley seems to really “get” blogging, and I find something interesting there every time I check.

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83Comments

  1. 1.

    Spiffy McBang

    May 27, 2009 at 7:36 pm

    I wish I understood where the line is drawn as far as what a federal court can do re: the laws written into a state constitution. It’s one thing if it’s just a bill that got passed, but the reason groups go after constitutional amendments (federal and state) is that it then becomes part of the legal foundation of the government. The fact California has an idiotic method of amending the state constitution doesn’t change that basic fact.

    I just wish stupid crap like this got shot down at the polls so this whole “legislating from the bench” stuff would never become an issue.

  2. 2.

    Woody

    May 27, 2009 at 7:40 pm

    did the Court refuse to grant cert to cases that impinged on the issue?

    It has seemed to me since the issue gained prominence that the EP and DP clauses of the 14th Amendment.

    unless they fear a loss, which would then re-enshrine a mere religious prejudice into the governing constructs of our political life.

    if the SCROTUS refused it, heretofore, it might have been because the logic of the 14th amendment claims is so overwhelmingly compelling. I’ve used the term “slam-dunk.” In its collective soul the SCROTUS knows logic will compel it to offend the wackloon/flying-monkey/faith-tards, and the Court doesn’t really want to take that kind of political hit.

    But they can blame it on Obama. So there’s that. Most librul Senatoah EVAH!

  3. 3.

    Spiffy McBang

    May 27, 2009 at 7:44 pm

    The SCROTUS? >_>

  4. 4.

    demkat620

    May 27, 2009 at 7:45 pm

    Does this come out of the 18,000 marriages they left intact? IANAL so, is that what is the basis of the lawsuit? Because that part made no sense to me at all. Didn’t that create a special class of people?

    If this is successful does this mean gay people finally get full marriage rights?

  5. 5.

    MazeDancer

    May 27, 2009 at 7:47 pm

    Astonishing Olsen believes this. And what great PR they’ve teamed. Both he and Boies are unstoppable terriers. They will get their quarry. They will make this happen. What good news.

  6. 6.

    KG

    May 27, 2009 at 7:50 pm

    Spiffy – the line is the Fourteenth Amendment and the Supremacy Clause. The Fourteenth Amendment says:

    No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    The Supremacy Clause says that the Constitution of the United States and all laws and treaties made pursuant thereto are the supreme law of the land.

    So, if a provision of a State constitution violates the Federal Constitution – in this case, the Equal Protection Clause of the Fourteenth Amendment – then it is invalid. The reason so many of the anti-gay marriage crowd were pushing for constitutional amendments was because it would forestall the State Courts from enacting gay marriage, and would also take it out of the hands of the legislature (you know, the guys you hire to make these kinds of decisions). The gamble that they were making was that if they could stop it in the State law (where family law, property law, and the like are made) then they’d never have to deal with the federal question. The were mainly worried, I think, about the Full Faith and Credit Clause (which was supposed to be dealt with in the Defense of Marriage Act, but even a lot of conservative legal scholars think it’s unconstitutional). But, funny thing about our constitution, there’s all sorts of redundancies built into the system in case something goes askew.

    There is no bright line, though. It really comes down to the prerogative of the Plaintiff’s attorney, whether they want to go through State court or federal court. Most go through State court because they think they’ll have a better time of it. Federal court, you usually wait on, until you have some State court decisions on the family and property law issues that will make it easier for a judge to agree with your position.

  7. 7.

    Zuzu's Petals

    May 27, 2009 at 7:55 pm

    Once my head stopped spinning at the idea of approving of anything Ted Olson does…

    I know there’s a timeliness issue, but I’m still a little worried they’re bringing it now. I thought the conventional wisdom was to steer clear of the USSC as it’s now constituted, for fear of an irreversible smackdown.

    Sotomayor of course doesn’t change the equation.

    Not only that, but I think that unlike some state courts, the federal courts don’t treat sexual orientation as a suspect classification or marriage as a fundamental right. Just working from memory on that one, could be wrong.

  8. 8.

    Rey

    May 27, 2009 at 7:55 pm

    Cool. good stuff.

  9. 9.

    chopper

    May 27, 2009 at 7:59 pm

    olson??

    wow, politics really does make strange bedfellows.

    heh. ‘bedfellows’.

  10. 10.

    Martin

    May 27, 2009 at 8:01 pm

    It still seems to me that they need to make clear within the legal system whether homosexuality is a choice or a characteristic of people. The prevailing attitude on the right is that it’s a choice and I don’t see how you can give equal protection to people that choose to be in a given situation. That’s the basis of Prop-8 – gay people can get married if they would just suck up and stop being gay. If the court should rule that homosexuality isn’t a choice, then it seems that would end the whole game right then and there, all anti-gay marriage statues would get struck down, all adoption rules, DADT, and probably more state and local laws than I even want to know about.

    It sounds like that’s what they are shooting for here.

  11. 11.

    chopper

    May 27, 2009 at 8:02 pm

    So, if a provision of a State constitution violates the Federal Constitution – in this case, the Equal Protection Clause of the Fourteenth Amendment – then it is invalid.

    well, yes and no. if for example a provision of a state constitution would violate a right under the bill of rights, it would be invalid as a matter of course if it was a right that had been incorporated into the 14th amendment. otherwise it would not.

    this is why municipal gun bans are still considered constitutional. gun rights under the 2nd amendment don’t as of yet apply to states, although a recent case decided by the CAFC aims to change that.

  12. 12.

    Napoleon

    May 27, 2009 at 8:04 pm

    OT – Peak Wingnut from Space

  13. 13.

    Hob

    May 27, 2009 at 8:10 pm

    Martin, how do you square that with protections against discrimination based on religion? I can’t fire someone just for being a Zoroastrian, even though they clearly have a choice to convert to Jainism.

  14. 14.

    bobbo

    May 27, 2009 at 8:12 pm

    I am very suspsicious. I think Olson wants a ruling that allows same-sex marriage bans. That’s what this Court would give him. As far as sexuality being a choice, Martin – religion is a choice and it gets all kinds of protection. So I don’t think that’s the issue.

  15. 15.

    inthemo

    May 27, 2009 at 8:13 pm

    Take a second and check out this feature on California’s outrage at the State’s upholding of Prop 8.

    http://www.youtube.com/watch?v=X0nGQ6C4wEc&fmt=22

  16. 16.

    Krista

    May 27, 2009 at 8:15 pm

    It still seems to me that they need to make clear within the legal system whether homosexuality is a choice or a characteristic of people. The prevailing attitude on the right is that it’s a choice and I don’t see how you can give equal protection to people that choose to be in a given situation.

    What Hob said. You can’t discriminate based on religion, and religion is obviously a choice — nothing to do with genetics.

  17. 17.

    Notorious P.A.T.

    May 27, 2009 at 8:16 pm

    They are challenging the prohibition of same-sex marriage as a violation of the equal protection and due process clauses of the Fourteenth Amendment to the U.S. Constitution

    About f**king time.

  18. 18.

    Indylib

    May 27, 2009 at 8:16 pm

    @Napoleon

    OMFG

    According to Rush

    If ever a civil rights movement was needed in America, it is for the Republican Party. If ever we needed to start marching for freedom and Constitutional rights, it’s for the Republican Party. The Republican Party is today’s oppressed minority.

    I don’t even know what to say about this – the hypocrisy and stupidity is beyond belief.

  19. 19.

    randiego

    May 27, 2009 at 8:16 pm

    I wouldn’t trust Ted Olson with a ten-foot pole.

  20. 20.

    KCinDC

    May 27, 2009 at 8:18 pm

    It still seems to me that they need to make clear within the legal system whether homosexuality is a choice or a characteristic of people.

    I don’t think that’s particularly relevant (nor do I think there’s going to be a black-and-white answer to the question). Religion is a choice, but it’s still protected. Alcoholism has genetic influences, but it’s still viewed as a disability, not something we just have to accept because it’s not a choice. Science isn’t going to answer the moral question of how homosexuality should be handled by society.

  21. 21.

    MikeJ

    May 27, 2009 at 8:19 pm

    As far as sexuality being a choice, Martin – religion is a choice and it gets all kinds of protection.

    But religion is specifically mentioned as being protected, so it’s a special case. It doesn’t make it right or wrong, but it simply is.

  22. 22.

    Bubblegum Tate

    May 27, 2009 at 8:25 pm

    Ted Theodore Olson is about to get thrown under the face-slapping bus.

  23. 23.

    joe from Lowell

    May 27, 2009 at 8:29 pm

    Olsen and Boies are going to get their asses kicked.

  24. 24.

    KCinDC

    May 27, 2009 at 8:30 pm

    I really don’t understand how this can lead to anything other than a setback for marriage equality. There is no way the current Supreme Court is going to find a right to same-sex marriage in the Constitution.

    The Freedom to Marry coalition thinks the same. What am I missing?

  25. 25.

    Dennis-SGMM

    May 27, 2009 at 8:31 pm

    Despite the merits of the case and despite the legal firepower arrayed against Prop. 8, I have no doubt that the Roberts/Alito/Thomas court will uphold the ability of the voters of California to deprive an entire class of people of their rights. The court’s contortions in justifying its decision will provide fodder for generations of legal scholars.

  26. 26.

    Michael D.

    May 27, 2009 at 8:34 pm

    @Martin:

    The prevailing attitude on the right is that it’s a choice and I don’t see how you can give equal protection to people that choose to be in a given situation.

    Why not? It’s not a choice, as I well know, but if it was, how would protecting my right to make that choice be any different from you or someone else practicing the religion of your choice? And I don’t believe there’s an argument that religious believe is a genetic characteristic.

  27. 27.

    Krista

    May 27, 2009 at 8:36 pm

    If ever a civil rights movement was needed in America, it is for the Republican Party. If ever we needed to start marching for freedom and Constitutional rights, it’s for the Republican Party. The Republican Party is today’s oppressed minority.

    The mind simply boggles. Those poor bastards…they’re so oppressed since they were voted out of power and since people rejected their particular flavour of politics.

    These people do NOT handle losing power well, do they?

  28. 28.

    gex

    May 27, 2009 at 8:43 pm

    @Zuzu’s Petals: I believe the USSC ruled marriage a fundamental right in Loving v. Virginia in ’68. If the USSC has refused to visit the issue before, perhaps that would be the reason. In fact, that’s why Lawrence v. Texas was so important and really seemed to kick this issue into high gear. Once they found the state had no valid reason to legislate sodomy for gays only, they probably lost the only issue they could present to the court as a reason to keep gay people from marriage – i.e. that the resultant “relations” would themselves be illegal.

  29. 29.

    Wilson Heath

    May 27, 2009 at 8:47 pm

    Shocker about Ted Olsen. I had always assumed he was a pod person with the full ideologically monty. Definitely need to reevaluate him a bit now.

    (I presume this is part of why he wasn’t a Bush SCOTUS nominee.)

  30. 30.

    gex

    May 27, 2009 at 8:48 pm

    @Martin: This issue too was already address in Lawrence v. Texas. The question about choice/born that way and how that affects suspect class status was relevant to that case as well. I think essentially the court said what our current state of knowledge is – that we don’t know but it does seem to be fixed and innate for many gay people.

  31. 31.

    geg6

    May 27, 2009 at 8:50 pm

    Martin: We also have freedom of association. We can choose an all white country club or to be active in an ethnic association or the KKK or live with whomever you wish and expect that we will still have all the same rights and privileges of any other citizens even if some people don’t like it. Not to mention the equal protection clause. I don’t know how you can argue that separate types of legally recognized committed relationships, one of which carries special protection based on religion and prejudice but no legal argument and one that is cast as decidedly second class can ever pass muster under equal protection. I think this is a powerful legal team (even if I love one and detest the other) who are first class in their field who have come together over a matter of constitutional principle. Personally, I’m just heartened that there is still one Republican who actually recognizes a principal truly worth fighting for. I’m surprised but delighted by Olsen taking this on with Boies and am now forced to reevaluate my very low opinion of him. I wish more Republicans would do that. But I won’t be holding my breath for that.

  32. 32.

    kmeyer57

    May 27, 2009 at 8:54 pm

    It makes no difference whether it is a choice or not (btw, i don’t think it is). The whole argument “it’s not a choice” kind of cedes the ick factor IMO. I personally don’t think sexuality is necessarily constant throughout one’s life (look at Lou Reed, for instance), and making this the hinge of the argument keeps us from attaining a deeper understanding of sexuality.

  33. 33.

    gwangung

    May 27, 2009 at 8:58 pm

    I’m surprised but delighted by Olsen taking this on with Boies and am now forced to reevaluate my very low opinion of him. I wish more Republicans would do that. But I won’t be holding my breath for that.

    Personally, I am delighted to re-evaluate my opinion. I like to think the best of people and it takes far too much effort to think of people as unredeemable jerks. And it keeps things unpredictable and lively.

    So, please. Republicans. Act like thoughtful human beings and amuse me,

  34. 34.

    gex

    May 27, 2009 at 8:59 pm

    @kmeyer57: To further back your point (and show why we should just insist on defending gays regardless whether it is innate or a choice) I must relay an interview I heard on the radio. I think it was NPR’s talking of faith or whatever.

    Anyhow, whichever “holy man” was being interviewed was asked, “if science can prove that homosexuality is genetically wired and not a behavioral choice, would that change how your church sees it?”

    His response basically was that we also see that alcoholism and violence have genetic components too. Just because a behavior is genetic doesn’t mean it is benign or good. Therefore there would be no reason to change their position.

    So no, let’s not get into that game. It is all about hating on the queers, nothing more, nothing less.

  35. 35.

    You Don't Say

    May 27, 2009 at 9:09 pm

    Except that Turley said that the Obama presidency was the biggest “bait and switch” in the history of the US on Rachel Maddow’s show. And said Sotomayor is not that bright. Other than that he’s good.

  36. 36.

    Litlebritdifrnt

    May 27, 2009 at 9:10 pm

    OT – but excuse me the third ad on the left hand side which promises to get rid of wrinkles, you might want to have a before picture that does NOT HAVE A COMPLETELY AND UTTERLY DIFFERENT NOSE THAN THE AFTER PIC. Thank you.

  37. 37.

    Incertus

    May 27, 2009 at 9:11 pm

    Assuming Olson isn’t planning to submarine this thing, I’d be willing to bet that someone close to him came out recently–that’s usually the kind of thing that causes a change of heart.

  38. 38.

    DennisR

    May 27, 2009 at 9:13 pm

    I was stunned reading about Olsen and Boies challenging Proposition 8 with a Federal lawsuit. I am one of approximately 36,000 Californians legally married to my same-sex partner. I take Ted Olsen’s statements at face value and welcome his efforts on behalf of marriage equality. I really like the idea of Olsen, a heterosexual, conservative, Republican, DC-insider, heavyhitter with a winning record in front of the Supreme Court teaming up with Boies. Prop 8 deserves to be challenged and now is as good of a time as any. Who would have imagined Bowers v. Hardwick would be overturned by the Rehnquist court?

  39. 39.

    geg6

    May 27, 2009 at 9:20 pm

    You Don’t Say: I’ve seen Turley discussing Sotomayor numerous times since her name first got floated. I haven’t been to his blog but if he states there that he thinks she’s not bright, that would contradict what I’ve heard him say. And the facts of her biography refute that anyway. In which case I’d be forced to conclude it was Jonathan Turley who wasn’t very bright. And that would make me sad.

  40. 40.

    kmeyer57

    May 27, 2009 at 9:22 pm

    gex, i think you’re dead on. BTW, props to Olsen, who also bolted on the Bushies after the torture regime began. He was close to David Brock when Brock was on the dark side, maybe that has something to do with it.

  41. 41.

    kay

    May 27, 2009 at 9:24 pm

    @You Don’t Say:

    Crusader prosecutors scare me a little, just on general principles.

    Turley sometimes has that glittery, fanatic look in his eyes. I’m just wary.

  42. 42.

    Krista

    May 27, 2009 at 9:24 pm

    His response basically was that we also see that alcoholism and violence have genetic components too. Just because a behavior is genetic doesn’t mean it is benign or good. Therefore there would be no reason to change their position.

    Exactly. A proper homosexual would have the strength of will to overcome their unnatural inclinations, and would either marry a person of the opposite sex, or, if they cannot bring themselves to do so, would lead a life of loveless chastity. Anything else is simply immoral.

    /end wingnut

    Seriously, that is how these people think. They don’t give a damn if people are gay, so long as they stay properly in the closet and hidden away.

    And if all of these people are utterly miserable and leading lives without love, honesty or hope, well that’s a small price to pay, if it means that some heteros won’t have to feel all squicky from having to endure the terrible, oppressive torment of hearing about gays getting married. I mean, won’t somebody think of those poor straights, and how unspeakably awful it must be for them to be confronted with the fact that some men actually enjoy kissing each other…with tongue? Oh, the humanity!

  43. 43.

    GlenInBrooklyn

    May 27, 2009 at 9:26 pm

    Thanks for the link. I didn’t know Turley had a blog. Now suitably bookmarked.

  44. 44.

    blogreeder

    May 27, 2009 at 9:27 pm

    Most states already have laws on the books that prohibit same-sex marriages. Adding an amendment is no different from the legislature enacting it. So this would be a challenge to all States. I don’t think the SCOTUS will hear it. IMO, Same sex ban is just like same immediate family ban or different species ban. I guess I feel the same way as Obama.

  45. 45.

    KG

    May 27, 2009 at 9:29 pm

    I think I’ve met Ted Olson at some Federalist Society event along the way. Good guy. Not entirely surprised by this, he always seemed to be more in the libertarian camp than the conservative camp within the Federalist Society. Though I may be confusing him with someone else.

    @11: ah, yeah, incorporation. Though, incorporation isn’t really an issue here because we’re not talking about one of the enumerated rights within the Bill of Rights. Brown v. Board was decided on the 14A Equal Protection Clause, if I’m not mistaken, and there was no issue with incorporation. Of course, I may be confusing equal protection with substantive due process (I cannot say how much it annoys me that they screwed up jurisprudence on the Privileges and Immunities Clauses to require a distinction between substantive due process and procedural due process).

    As for the make up of the Supreme Court. It doesn’t matter what it looks like right now. This will be in the district court for six months to a year (minimum). The Ninth Circuit Court of Appeal will take another year to hear it (two if they go en banc). The Supremes won’t get it for at least two terms, probably three or four terms. At which point, we may be looking at a whole different court (granted, Stevens and Ginsberg are the next most likely to retire, but anything could happen in that time frame).

  46. 46.

    Ash Can

    May 27, 2009 at 9:35 pm

    I said this in another thread and I’ll repeat it here — as I watched the Bush v. Gore mess unfold in 2000, I felt that Ted Olson was by far the most sensible Republican/Republican sympathizer of the whole sorry lot. When the Supremes finally ruled to stop the recount and it was all over, I hoped against hope that it would be people like Olson taking over in DC (oh well). Therefore, it doesn’t suprise me that he’s doing this.

    As an aside, on top of everything, his wife was among the 9/11 victims. I felt awful for him when I heard that.

  47. 47.

    kmeyer57

    May 27, 2009 at 9:36 pm

    @KG, SCOTUS has been dodging this issue for years, I’m guessing they’ll pony up only after the majority of states have provided for gay marriage. Because legally, it’s such a fucking no-brainer. Banning gay marriage clearly violates equal protection, there’s no way to make a legal argument otherwise.

  48. 48.

    Incertus

    May 27, 2009 at 9:39 pm

    @KG:

    At which point, we may be looking at a whole different court (granted, Stevens and Ginsberg are the next most likely to retire, but anything could happen in that time frame).

    Or maybe Scalia wanders in front of a truck.

  49. 49.

    Nellcote

    May 27, 2009 at 9:39 pm

    Repubs have been using Turley and Rosen as proof the even Liberals think she’s unqualified. It’s beyond annoying that Turley’s become a useful idiot.

  50. 50.

    Ash Can

    May 27, 2009 at 9:42 pm

    @blogreeder: You would feel the same as Obama if you believed that same-gender marriage shouldn’t be legislated against. As it is, all you’re doing is projecting your own personal dislikes.

  51. 51.

    blogreeder

    May 27, 2009 at 9:42 pm

    Banning gay marriage clearly violates equal protection, there’s no way to make a legal argument otherwise.

    You’re not a lawyer, are you? They can make a legal argument from anything.

  52. 52.

    blogreeder

    May 27, 2009 at 9:46 pm

    You would feel the same as Obama if you believed that same-gender marriage shouldn’t be legislated against.

    So are you saying Obama feels that marriage should be between a man and a woman but don’t take me seriously?

  53. 53.

    Dennis-SGMM

    May 27, 2009 at 9:48 pm

    @Krista:

    Exactly. A proper homosexual would have the strength of will to overcome their unnatural inclinations, and would either marry a person of the opposite sex, or, if they cannot bring themselves to do so, would lead a life of loveless chastity. Anything else is simply immoral.
    /end wingnut

    I have attended the funerals of alcoholics who had the strength of will to force down another drink even as they were bleeding at both ends. My brother, who has been gay as long as I can remember (And I’m 61) once told me “Do you think that anyone would choose to live this life? I could not tell mom, or especially, dad the truth about my self. I will never be married, never have a family.”

  54. 54.

    geg6

    May 27, 2009 at 9:52 pm

    blogreeder: Yes, they can make the argument. The trick is making an argument that is a winning one. You seem to think that all arguments are equal. In which case, I must conclude that you are a member of the media.

  55. 55.

    Dennis-SGMM

    May 27, 2009 at 9:53 pm

    @blogreeder:
    I don’t take you seriously but, that’s based on your puerile and poorly reasoned posts. Please stop holding back your really good stuff.

  56. 56.

    Krista

    May 27, 2009 at 10:01 pm

    My brother, who has been gay as long as I can remember (And I’m 61) once told me “Do you think that anyone would choose to live this life? I could not tell mom, or especially, dad the truth about my self. I will never be married, never have a family.”

    Oh, exactly. You ask these people how they would feel if being straight were outlawed, and how it would affect their lives if they had to pretend to be something they’re not and go their entire lives without openly being with the one they love. They just blink at you and start in again with the same tired old arguments.

    I really, really think that a social conservative is someone who is utterly mentally incapable of putting him/herself into someone else’s shoes. I can’t think of any other explanation for being comfortable with denying other people basic human rights.

  57. 57.

    Krista

    May 27, 2009 at 10:03 pm

    I have no idea why my last comment went into moderation — I’ve read it over a few times and still don’t see any trigger words. Weird.

  58. 58.

    beergoggles

    May 27, 2009 at 10:15 pm

    @gex:

    In fact, that’s why Lawrence v. Texas was so important and really seemed to kick this issue into high gear. Once they found the state had no valid reason to legislate sodomy for gays only, they probably lost the only issue they could present to the court as a reason to keep gay people from marriage

    Funnily enough Scalia said the same thing in his dissent in Lawrence vs. Texas..

  59. 59.

    blogreeder

    May 27, 2009 at 10:16 pm

    Yes, they can make the argument. The trick is making an argument that is a winning one.

    Yes, that’s the trick. Remember “if the glove don’t fit, you must acquit”? Anything can be a legal argument.

  60. 60.

    blogreeder

    May 27, 2009 at 10:17 pm

    I have no idea why my last comment went into moderation—I’ve read it over a few times and still don’t see any trigger words. Weird.

    Maybe they were trying to moderate me and they missed.

  61. 61.

    blogreeder

    May 27, 2009 at 10:20 pm

    I don’t take you seriously but, that’s based on your puerile and poorly reasoned posts. Please stop holding back your really good stuff.

    When I wrote “don’t take me seriously” I was speaking as Obama. I don’t think it was written as clearly as it could have been. But the reasoning was spot on.

  62. 62.

    Irony Abounds

    May 27, 2009 at 10:24 pm

    John, not to be a nit-picker, but since you are expressing your approval of Turley’s blog, and adding it to the Blogroll, you might as well get the spelling of his first name right: Jonathan, not Jonathon (I got nit-picked on something today and thought I would pass it on).

  63. 63.

    b-psycho

    May 27, 2009 at 10:33 pm

    @Krista: Let’s do another test:

    Nice shoes!

    Edit: it’s the 2nd word of the above sentence. Must’ve been a particularly aggressive spam-bot peddling those foot cover thingies recently.

  64. 64.

    laxel

    May 27, 2009 at 10:35 pm

    Dere Jon, Goe Redd Winges!

  65. 65.

    You Don't Say

    May 27, 2009 at 10:38 pm

    @geg6: http://www.youtube.com/watch?v=b0hu9Om_yhI&feature=related

  66. 66.

    laxel

    May 27, 2009 at 10:41 pm

    Oops, sorry the open thread was one over, please disregard.

  67. 67.

    Zuzu's Petals

    May 27, 2009 at 10:49 pm

    @gex:

    Yes, I’d thought about Loving, but don’t forget that even though they described marriage as a right “fundamental to our very existence and survival,” the focus was on the EP question of an impermissible classification based on race, not a DP question of an impermissible infringement of a fundamental right. In fact, the DP discussion, as I recall, brought the focus back to the racial discrimination issue.

    I think there may be other cases out there that state the issue more clearly, but for some reason I seem to recall a vagueness on the “fundamental right to marry” question in federal cases.

  68. 68.

    Ked

    May 27, 2009 at 10:57 pm

    I just commented on this over at the GOS, but…

    Bottom line, Boies is the lawyer whose name was all over the SCO vs. IBM shakedown attempt. If he means to bring the same sort of sneering, bluffing disrespect for law, legal practice, and common sense into this courtroom, he may end up setting back gay rights in this country for decades to come.

  69. 69.

    someguy

    May 27, 2009 at 10:58 pm

    As far as sexuality being a choice, Martin – religion is a choice and it gets all kinds of protection.

    So’s political free speech, freedom of association, and freedom of the press. So’s bearing arms, requesting a lawyer when the cops are interrogating you, and requesting trial by jury. I’m not sure we’re singling things like that out for special protection. The framers were a bunch of vile old white slaveholders, but they viewed most people – at least property owning white males – as having a big package of rights that were inherent in citizenship, and the bill of rights only touched on a few of those. They wouldn’t have viewed it as singling out particular things for special protection but as stating what was obvious to them at that time. The bill of rights now, of course, is viewed as the sole source of federal rights (save federal rights statutes) and as the sole limitation on federal power. The framers probably would view that sort of “originalism” with horror.

  70. 70.

    gex

    May 27, 2009 at 11:12 pm

    @Zuzu’s Petals: I guess, since I am not a lawyer, that this doesn’t make any sense to me with my human logic. Calling something a fundamental right, well, seems to go amiss when you add caveats and call it a fundamental right for just some people based on these classifications. But that does not mean that your understanding of the limits on that term is incorrect.

  71. 71.

    Martin

    May 27, 2009 at 11:13 pm

    Martin, how do you square that with protections against discrimination based on religion? I can’t fire someone just for being a Zoroastrian, even though they clearly have a choice to convert to Jainism.

    The church you attend is choice. You have a choice to convert, but that doesn’t change your beliefs, just your label. That’s like saying that women don’t need protection because they can get a sex change or more simply wear a suit or that Latinos don’t need protection because they can change their name from José to Joe.

    I think it’s commonly accepted within the courts that belief isn’t something you can turn on and off. I challenge anyone to convince a devout Christian that God doesn’t exist, or a devout atheist that He does, and I think the court recognizes that. Something which is involuntary or innate doesn’t need to be genetic. Disabilities are often not genetic, but environmental, and garner protections all the same.

    I think some people may have taken that I was giving cover to the idea that this is a matter of choice, which I absolutely disagree with. We worked hard to defeat Prop 8 here, at the expense of a number of friendships. My point here is that until the courts clearly weigh in on that particular issue, this battle will forever have to be fought. If the courts make it perfectly clear that this is not a matter of choice, then it seems to me that a lot of things just fall away.

  72. 72.

    Michael

    May 27, 2009 at 11:59 pm

    They’re wigging out over Olson at the FReak. It is really pretty funny – they’re lining up to toss him under the bus.

  73. 73.

    Zuzu's Petals

    May 27, 2009 at 11:59 pm

    @gex:

    Human logic?!

    Well, there you go right there.

  74. 74.

    Church Lady

    May 28, 2009 at 12:30 am

    Currently there is a firestorm over a proposed employment protection ordinance for Shelby County, TN. It would apply to county government and businesses under contract with the county. Under current law, race, gender, religion and ethnicity are protected, but sexual orientation is not. Steve Mulroy, the County Commissioner that proposed the new ordinance, is a democrat and a devout Roman Catholic. Yesterday, a group of white evangelical pastors teamed up with a group of black pastors for a news conference decrying the proposed change in the law. This is in spite of a waiver in the law for churches, who will still be able to fire any gay employee they want to just for being gay.

    All of them, black and white, declared that homosexuality is a choice and derided comparisons of gay rights to civil rights, since blacks don’t choose to be black. The Book of Leviticus was mentioned often.

    Given that blacks typically are notoriously homophobic and Shelby County is about 50% black, and given that evangelicals aren’t particularly friendly to the GLBT community and we are often referred to as “the buckle of the bible belt”, I’m not so sure that the ordinance will pass.

    It’s times like these that I tend to examine my love-hate relationship with the South and fleetingly wish I could move.

  75. 75.

    Jay Severin Has A Small Pen1s

    May 28, 2009 at 12:35 am

    So let’s see. Put those two together and what do you get?

    8 years of George Bush.

  76. 76.

    Sock Puppet of the Great Satan

    May 28, 2009 at 2:22 am

    Wow. Kudos to Olson, both for this and for distancing himself from the Bush torture policy, especially considering he lost his wife on 9/11.

  77. 77.

    Anne Laurie

    May 28, 2009 at 3:12 am

    Or maybe Scalia wanders in front of a truck.

    Or (my personal fave) gets caught on camera in flagrante with John Roberts. Especially if Alito’s the one running the camera. Yeah, I don’t think Little Nino swings that way, but you know how pushy those “power bottoms” can be when confronted by a mighty hunk o’ abusive, power-drunk man-meat like Opus Dei’s representative to the Supreme Court!

  78. 78.

    Blue Raven

    May 28, 2009 at 3:52 am

    @Martin:

    I think it’s commonly accepted within the courts that belief isn’t something you can turn on and off. I challenge anyone to convince a devout Christian that God doesn’t exist, or a devout atheist that He does, and I think the court recognizes that. Something which is involuntary or innate doesn’t need to be genetic.

    I challenge you to tell anyone who has moved from believer to atheist or the other way that their belief system is involuntary or innate. I moved from monotheist to polytheist myself. I know someone else who moved from polytheist to agnostic and another who went from atheist to polytheist. More than one person here would be able to speak for hours on their move to the atheist column. False analogy. Flag on the play. Ten-yard penalty. Third down.

  79. 79.

    Will

    May 28, 2009 at 5:52 am

    Turley has been a really arrogant prick the last few days blasting Sotomayor’s brain credentials.

  80. 80.

    cybrestrike

    May 28, 2009 at 8:00 am

    Ever since Turley joined in the Villager whisper campaign against Sonia Sotomayor, I’ve brushed him to the side. He’s looked like an idiot arguing against her credentials.

  81. 81.

    Michael D.

    May 28, 2009 at 8:02 am

    @Incertus:

    Or maybe Scalia wanders in front of a truck.

    Well, I don’t want to wish ill on anyone – including him, but he was just an Italian-American affirmative action pick anyway, wasn’t he?

  82. 82.

    gypsy howell

    May 28, 2009 at 10:26 am

    Who knew Ted Olsen was gay?

  83. 83.

    Joshua

    May 29, 2009 at 11:52 pm

    Yes you are right! However, there is something people have over looked; because, a cheating practice was slowly enforced upon us for the past 100 years, disguised as modernization, and now most people cannot even recognize it. Gay and lesbian AUTHORITIES were the one’s who spear-headed the women’s liberation movement, now (NOM), and their influence on the elite in society did encourage governmental authorities to shatter the traditional family, take away parental rights, and destroy the man as head of house hold, and as the sole provider for his family. Our own government DIMINISHED the man’s pay check and his EARNING capacity, so that both parents MUST neglect the child, and work for a paycheck, just to make financial ends meet. So, now that a man is no longer a PROVIDER and the head-of-house-hold, and now that both parents must struggle against economic SLAVERY that is designed to destroy the quality of life within the family, a gay man now rears his ugly immoral head and deems himself to be equal to the man who has had his prestige and recognition stripped away, by the influence of gays and lesbians. Therefore, homosexuals only use their equal rights to obtain a more effective, higher platform, to attack traditional Christian family values, and bring us down to their level of DIS-SATISFACTION. Now, after diminishment, and being brought down into nothingness, and after heterosexual relationships have been corrupted with unhappiness and dis-satisfaction, a gay man accuses heterosexuals of being bad parents, and claims that he can be a better parent. Here is REALITY, heterosexuals are in a life and death struggle against an immoral corruption campaign that is waged against them by homosexuals in positions of power and authority, in our own government, and most of us don’t even know it; YET, and this governmental oppression does damage our ability to be BETTER parents. What moral Christian people need to do is to make heterosexual parents aware of this immoral homosexual crusade against them, so that together, we will repel this homosexual corruption of human life. Therefore, whether you realize it or not, it is the destruction of man as head of household, and the recent attacks against modern liberated women, that has coerced people to enact Proposition-8; in California, and the majority of people support it because we have had enough of being robbed, diminished, and cheated by an immoral homosexual campaign against us. This matter is not about civil rights, it’s about the inalienable right to pursue happiness, as equally, as gays do in their sodomite life style.

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