Olson and Boies on Prop. 8 Ruling

Prop 8 Closing Arguments Complete

The closing arguments in the Prop 8 trial concluded yesterday with Ted Olson arguing for equality and Charles Cooper arguing for continued discrimination (I'm biased, sue me).  By all accounts, things went very well for our side.  Olson is one of the best lawyers in the nation and we are lucky to have him advocating for us. 

Cooper contended that Prop 8 can only be overturned if there is no rational basis for it.  His arguments focused on procreation as that rational basis. Amazingly, when Judge Walker asked for evidence that procreation is the basis for marriage, he said evidence is unnecessary because it's self-evident.  As a lawyer, I find that answer stunning.  When a judge asks for evidence that means you have failed as a lawyer unless you can point to some.  As a human being, I find it absurd.  My sister married at the age of 57 with her grown daughter as her maid of honor.  I really don't think procreation was the basis of that marriage, yet the Catholic priest did not hesitate to perform the ceremony.  My sister is straight and married a man.  If procreation really is the basis for marriage law, why are gays the only ones prohibited from marrying because of our supposed inability to procreate?

Olson, on the other hand, argued brilliantly, by all accounts.  He argued that marriage is a fundamental right and there is no good reason to deny that right to gays.  He argued that Prop 8 fails under either rational basis or strict scrutiny.  Strict scrutiny is the legal standard by which laws affecting people due to race are examined.  Federal courts have not applied it to gays.

Here's Kate Kendall of the National Center for Lesbian Rights on her impressions of the closing arguments:

Liz Cheney Hates America

Liz Cheney, who has made a career of sponging off Daddy Dick's fame, has launched a little website ironically called "Keep America Safe."  KAS' latest cynical ploy is to fake outrage over seven Justice Department lawyers who previously provided legal services to terror suspects.  La Liz had branded them all "the Al-Qaeda 7."  See how that works?  She doesn't actually come out and say they're terrorist sympathizers, she just implies it.  Strongly. 

Why does Liz Cheney hate America?  There is an honorable tradition in the legal profession of representing unpopular defendants.  Our judicial system depends on it.  Is Liz truly that ignorant of the American justice system or is she contemptuous of it?  Apparently she doesn't mind dragging a honorable people through the muck if she can score a few political points. 

Unfortunately for the queen of nepotism, she seems to be stirring up a backlash from the right.  John Bellenger, former legal advisor to Secretary of State Condolezza Rice said:

"It reflects the politicization and the polarization of terrorism issues," Bellinger said. "Neither Republicans nor Democrats should be attacking officials in each other's administrations based solely on the clients they have represented in the past."

Former Solicitor General to George W. Bush Ted Olson (and lead attorney on the current legal challenge to Prop 8) said:

"When government officials are called 'war criminals' and when public-interest lawyers are called 'terrorist huggers,' it not only cheapens the discourse, it scrambles the dialogue," Olson wrote, along with Neal Katyal, currently a DoJ Deputy Solicitor General and one of the lawyers who represented Gitmo detainees. "The best solutions to these difficult problems will emerge only when the best advocates, backed by weighty resources, bring their talents to bear. And the heavy work of creating solutions for these complicated issues can only move forward when the name-calling ceases."


Don't think for a minute that this means Liz Cheney will relent.  She will never miss an opportunity to politicize terrorism and national defense.  Apparently soullessness is an inherited trait. 

Prop. 8 Trial Opens

The Prop. 8 trial opened yesterday.  Ted Olson's opening statement is set forth in its entirety here.  An excerpt: 

The State of California has offered no justification for its decision to eliminate the fundamental right to marry for a segment of its citizens.  And its chief legal officer, the Attorney General, admits that none exists.  And the evidence will show that each of the rationalizations for Proposition 8 invented by its Proponents is wholly without merit.

It's a brilliant opening statement well worth reading.  Olson and Boies are the best of the best in the legal profession.  I'm cautiously optimistic about this case because we're in such good hands.  Excellent coverage of the trial can be found here, here, and here,  

Check out Olson's answer when the judge asked why this case should be in court at all:

That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today.”

Concise, accurate, brilliant.  

The Conservative Case for Marriage

Ted Olson, former Solicitor General in the George W. Bush administration and half of the legal team bringing the lawsuit challenging Prop. 8 has written a strong article for Newsweek laying out the conservative case for marriage.  An excerpt:

Americans who believe in the words of the Declaration of Independence, in Lincoln's Gettysburg Address, in the 14th Amendment, and in the Constitution's guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues. This is not a conservative or liberal issue; it is an American one, and it is time that we, as Americans, embraced it.

Read the whole thing.  It's worth your time.