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Loading ...Prop 8 forum: Olson & Boies speak
UPDATE: Watch the video of the gay marriage Q&A.
Last night, the New York Times’ gay and lesbian affinity employee group hosted a Q&A session with Prop 8 superlawyers David Boies and Ted Olson.I saw Joe Sudbay from Joe.My.God and Paul Schindler from Gay City News there – also Andy Towle and Corey Jonson from Towleroad (go there for a great interview with the lawyers), as well as representatives from the local offices of most of our major gay organizations, the wonderful David Mixner, and many, many Times employees (including publisher Arthur Sulzberger Jr., who sat in front of me).
Olson and Boies were amazing – articulate, warm, witty, thoughtful. Everything they seemed to be in the courtroom. What did they talk about? They were interviewed by NYT Supreme Court reporter Adam Liptak and so were asked some tough questions.
There was the usual fare: How did this unusual partnership come about (they’re old friends; Olson, who defended Bush in Bush v. Gore, thought this was an important issue that bridged the Republican/Democrat divide and so asked Boies – who defended Gore – to join); Is this the right moment for the case, considering the makeup of the Supreme Court (there was going to be a case brought anyway and they have the resources to do it right).
Needless to say, both lawyers are super confident that they will win the current, district-level case, the appellate case – and even the Supreme Court.
But there were three things that surprised me.
Liptak asked if the Supreme Court ruling about not videotaping and broadcasting the Prop 8 trial said anything about how the Justices would rule in the final case, or how they felt about the judge.
No, Olson said. It’s just that the Supreme Court is very shy about having cameras in THEIR court room and they feared that allowing these cameras in a constitutional case would make it very hard for them to avoid cameras in their own court.
But instead of saying that, they sided with the Prop 8 backers who said they feared intimidation were they to be videotaped. That decision, Olson said, was “fundamentally wrong.” First of all, all Prop 8 witnesses were videotaped in deposition – Olson and Boies are free to post those tapes to the web, and may do so. Second, all the pro-Prop 8 witnesses were people who had made speeches, given money, and generally made themselves into public figures.
The second [and more important] thing that surprised me: Olson and Boies believe that this case can have no bad outcome.
If the Supreme Court rules against us, they said, the Justices are likely to decide that whether gay marriage is permitted should be left up to the states.
And the third – and most surprising – thing:
Boies and Olson believe that this case will be decided by the Supreme Court by fall 2011.
I’m working on getting the video of the event – if that comes through, I’ll post it here. In the meantime, here are a couple more photos, all courtesy of Sara Krulwich from The New York Times.
“If the Supreme Court rules against us, they said, the Justices are likely to decide that whether gay marriage is permitted should be left up to the states.”
The trouble with this is that it still leaves LGBT citizens NOT covered by the Full Faith & Credit Clause of the U.S. Constitution. It is how inter-racial marriages became ‘legal’ in ALL States, per Living v. Virginia. ANY contract that is legal in one State is supposed to be legal (and legally recognized) in all other States.
‘Splain me THAT, lawyerboyz!
And considering how many states have already passed laws prohibiting same sex marriage I fail to see how this would be considered not a ‘bad outcome’.
“The trouble with this is that it still leaves LGBT citizens NOT covered by the Full Faith & Credit Clause of the U.S. Constitution. It is how inter-racial marriages became ‘legal’ in ALL States, per Living v. Virginia. ANY contract that is legal in one State is supposed to be legal (and legally recognized) in all other States.”
But…but…but……
That is NOT the ground that Prop 8 is being challenged on.
If the decision is ultimately left up to the states, an entirely different and NEW legal challenge can be mounted on this very Constitutional principle.
Which may be what they were saying in very subtle terms.
“… Full Faith & Credit Clause of the U.S. Constitution. It is how inter-racial marriages became ‘legal’ in ALL States, per Living v. Virginia. ANY contract that is legal in one State is supposed to be legal (and legally recognized) in all other States.”
Unfortunatly, that’s not what the Loving decision was based on, although it had some of that effect. The Loving decision states that banning interracial marage per se was unconstitional.
While I certainly hope for the best in this case, I’m trying to remain realistic about the posible outcomes.
Robert.
Precisely.
But I feel a successful challenge at the federal level MAY BE DRIVEN eventually by an unjust and indefensible violation of said clause – when states recognie straight out-of-state marriages that would be illegal within their own boirders, but do NOT recognize gay marriages from those selfsame states.
THAT would be clearly unconstitutional – and would provide an unassailable foundation on which to challenge ALL DOM legislation.
“Olsen and Boies are free to post those tapes to the web, and may do so”.
I assume once the case has been decided by Walker, there will be no reason not to post these. I think the public is very interested in seeing them, given the work that went into putting these people into hiding.
I would love to see how they are going to get this all the way through the supreme court by fall of 2011.
If that happens, it will be amazing, but with our justice system…?!
Well, the SCOTUS can hear cases on an ‘expedited basis’ if the issue is pressing or important enough – or if a decision is deemed necessary sooner rather than later.
This issue might be expedited by the scheduling rules and those who apply them.
For you Full Faith and Credit fans: The FF&C clause has rarely been used to extend rights, if ever. Read the recent Maryland attorny general’s report regarding out of state marriage recognition. Historically, states have an escape clause to the FF&CC called ’strong public policy’. A state’s constitution is evidence of strong public policy, while tradition, silence or contradictory policies would leave that question open. Fortunately for the lawyers, but unfortunately for everyone else there is no clear definition of “strong public policy”, so it’s left to judges to just make it all up as they go along. What a way to run a country!
Remember, Boise lost “Bush v. Gore” to disastrous consequences, although, if you read Dershowitz’s book on the Supreme Court’s cop out decision, you can see it wasn’t Boise’s fault. The other guy was portrayed in books about far right wing nuts as the lawyer of choice in attack dog jurisprudence. Boise’s style is inspiring: he doesn’t make a lot of the law, just argues facts and lets the justices draw their own conclusions. He is anti-legalese, and so are modern contracts, briefs, and other documents, BTW.
Thanks, gone for a few days. Please let us know who/where/when transcript available.
I don’t see the Full Faith and Credit clause helping us much. I don’t think it will get states to extend to us the benefits marriage normally brings. They will continue to hide behind the DOMA. I only think the FF&C clause will get states to recognize the marriage contract in court between the couple for purposes such as divorce.
It is time that we start screaming for our Civil Rights! Anyone or organization that denies us of them should be boycotted and called a bigot. Religion should be put in it’s place. We need to sue for separation of church and state. No church or individual in our government should quote a religious book or belief. This violates my right of freedom of religion! As a Tax paying US citizen I have the right to live my life free of religious restriction! If we can’t accomplish this we need to declare Homosexuality as a Religion! Then we would be bulletproof!
I have very high respect for both of these litigators. However, I do think it’s a bit disingenuous to claim that there’s no downside to the suit. The downside is the risk of a failed opportunity and an adverse precedent.
It’s true that a loss in this case will result in simply letting individual states’ prerogatives stand. But that’s not quite the same as falling back on the status quo, since there’ll be a new precedent on the books holding that states have the power to discriminate in this area.
The Court does reverse itself, and dare I say *will* reverse itself eventually if this case goes the wrong way. But if it comes to that, we’ll all be waiting a long time…
“That [the FF&C Clause] is NOT the ground that Prop 8 is being challenged on.”
I know. And I’m saying it SHOULD be. That and the Equal Protections Clause.
“The Loving decision states that banning interracial marage per se was unconstitional.”
So why aren’t lawyers making the case that banning same-sex marriage is unconstitutional?
This is not about the right to marry – there is no such ‘right’, not even for betterosexuals. It is about the FREEDOM to marry. America isn’t The Land of the Rights, it’s The Land of the FREE’ (TM). Since when can anyone’s freedoms be curtailed by prejudices?