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05/29/2009

Video: Chris and the right of Matthews to marry each other

by Jeremy Hooper

Boies and Olson shed light on their controversial lawsuit:

Is it time to stop seeing this as bizarre and start seeing it as promising? Or should we keep our hesitancy (or annoyance) at a high?

The battle, both internal and external, is likely to be epic.

Hardball [MSNBC]
(H/t: Towle)

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Your thoughts

I personally think this lawsuit is fantastic. Who better than a couple of old straight white guys who know federal law better than the back of their hands to bring it on.

The initial brief for injunction hits every nail of every argument on the head. I highly suggest everyone to read it.

http://www.stinque.com/wp-content/uploads/PerryPImotion.pdf

I'm getting the impression more and more that the gay orgs who are opposing the lawsuit are concerned more about their pocketbooks and the fact that this federal lawsuit might be successful.

Posted by: Jon | May 29, 2009 10:12:06 AM

At times we may get a present we don't particularly like or want, yet we learn to receive it graciously and make as much of it as we can.

We may give advice to help a friend make the best decision, yet once the decision is made, even if it's not just what we wanted, we support this decision as a friend.

Olson and Boies are obviously not about to change their minds. So let's cheer them on. Who knows, something good may come of it.

Posted by: Bill Ware | May 29, 2009 10:22:05 AM

"I'm getting the impression more and more that the gay orgs who are opposing the lawsuit are concerned more about their pocketbooks and the fact that this federal lawsuit might be successful"

That's certainly a thought, Jon. But another less cynical issue I've heard is that some of the groups don't appreciate their decades of work on this issue being circumvented. Some seem to think that there was a better protocol for going about this.

Posted by: G-A-Y | May 29, 2009 10:25:41 AM

I'll stay firmly in the "cautiously optomistic" side, thank you.

Lawyers, by the nature of their profession, can certainly switch sides in terms of the people and ideologies they must defend when they take or are assigned cases, but that doesn't explain Olsen.

This guy not only defended Bush in the disasterous Bush v. Gore case (just think where this country might be if that decision had come down differently... but I digress) he's also been a founding member of very uber-conservative groups and done lots of other really vile things that he has, personally, chosen to do to further the ultra-right-wing cause.

So forgive me for being a little suspicious that he now wants to help us.

Posted by: JWSwift | May 29, 2009 10:35:51 AM

There's also the possibility that this IS a calculated move to set us back decades.

Some folks think that the interpretation of Prop 8 in the recent ruling by the CA Supremes actually grants us all of the potential rights of marriage that the state can offer, but upholds the literal wording of Prop 8 to only deny us being able to call the unions a "marriage", ergo, we aren't technically being "denied" any rights at all, only the name marriage.

This would seem to undermine the argument upon which this suit seems to take: that Prop 8 denies us rights and is therefore unconstitutional as per the "Full Faith and Credit" clause.

So if that's all true (and granted, it is a big "if", since I personally don't have the legal background or the time to go and research any of this myself--consider this my disclaimer) then Olson and Boies should know this if they're as smart as we're all giving them credit for, and they could indeed be doing this to accomplish the feat of having the CA Supremes' ruling be applicable at a national level.

Posted by: JWSwift | May 29, 2009 10:48:18 AM

At first blush, I was pretty wary of the motives of attorneys who would bring a case involving same-sex marriage before this court. Even though I have warmed a bit to the idea, I still worry that it may not be the best time. But, it will probably be two to three years before it reaches (if it even does) the Roberts Court, and by then the timing at issue might be fortuitous.

Scalia, Thomas and Roberts are all worrisome, and that comment from Scalia where he said that he expected that same-sex marriage would become ubiquitous as a result of full faith and credit, was in the Lawrence v. Texas case. And when you look at the full context of the statement, he basically used that supposition of his as a reason for dissenting with the majority. In other words, he opposed overturning the Texas sodomy laws because doing so could open the door for same-sex marriage to be forced onto other states.

But, while that isn't the rousing endorsement that one might like, the fact that he did go on record with it in his dissenting opinion, might basically tie his hand. Lawrence is law, ergo he must find in favor of an expansive doctrine; at least, that is, to the extent that he is honorable (a distinction which may dubious at best). Of course, that also presupposes that Olson and Boies can make a full faith and credit argument for a case which doesn't include any out of state, married, same-sex couples as plaintiffs.

Posted by: Dick Mills | May 29, 2009 11:07:35 AM

"some of the groups don't appreciate their decades of work on this issue being circumvented."

I honestly don't think I'm being cynical, I believe these orgs see this as a threat. A few might be a little chagrined because they didn't think of it first. They got blindsided.

I've been working on this and other issues for decades as well, and I don't feel threatened or circumvented. I feel this may actually be the nail in the coffin for anti-gay legislation. The argument is strong and compelling. If you put on blinders & look at it from a right wing or even fundamentalist judicial angle, even the most extreme would have to agree the constitutional argument is solid.

And you know what? Who better to bring this case than two adversaries. . .granted the history, both of these guys are legal genius.

I digress. I don't see the conspiracy. I would like to see gay orgs get behind this effort, but I sincerly think that many of these orgs are fearful that if it's successful they're back to the fundraising drawing board. . .no more high profile coctail parties.

The exact reason why I won't donate another penny to these groups, my hard earned money is wasted on endless "wait until next time" measures. . .but then, the dnc knows this from us as well, the silence speaks reams.

I'll support GLESN and SLDN before another penny goes to HRC for another coctail/dinner party.


Posted by: Jon | May 29, 2009 11:33:41 AM

Jon: Just to clarify, because it may have come out wrong: I wasn't disputing what you said -- I was just building upon it. And I wasn't meaning to say that *you* are being cynical, I was just saying that a less cynical suggestion for why the orgs might be miffed is the idea that they are being circumvented (as opposed to being deprived of their ability to throw glitzy galas).

Posted by: G-A-Y | May 29, 2009 11:46:55 AM

Dick Mills said "Of course, that also presupposes that Olson and Boies can make a full faith and credit argument for a case which doesn't include any out of state, married, same-sex couples as plaintiffs."

I think part of the point here is that full faith and credit extends to the federal level, which would eviscerate DOMA as well as DP & CU seperate but equal status. There's no need for "out of state" couples to be included in the case, because it's initially about a state issue. . .but the overall effect or endgame is federal.

Posted by: Jon | May 29, 2009 11:48:38 AM

okay, we're on the same page. .. I hope I made sense.

Posted by: Jon | May 29, 2009 12:09:17 PM

Jon, et al. Thanks for the link to the Brief. Have forwarded. Not a lawyer, so I appreciated the openness of CMatthews interview. What I took from it is that
1) Marriage is a guaranteed liberty under our Consitution (previous cases).
2) Denial federally under the liberty and equal protection clauses of 14 is unconstitutional.

....and previously, that it will take 18 months just to reach docket then 6 more at district level... etc.

No religious involvement at all. ... and Lawrence vs King already established the MORALITY of same sex relationships.

Yes, there they are three, older, het, white males...taking on Marriage Equality...YES!

Cute, how Matthews ...and his wife... complimented Olson.

Posted by: LOrion | May 29, 2009 12:34:59 PM

I will also admit that I think this is exactly the kick in the ass these orgs need, and as I've said before, laying down in the streets took us years to even get Reagan to say the acronym AIDS while I watched my friends die for lack of leadership. And yes, the issues are connected. While I was protesting on the streets for education and action, our "leaders" were (and still are) holding coctail parties/fundraisers. . .and they do what with that money? Send out press releases, pay for executive salaries & the hotel room/travel expenses for their spokes.

Perhaps the gay economic stim package means purchasing a new tux, but I don't buy it even though I look good in a suit.

So I say Kudos to the group who is financing the federal lawsuit & support this effort more than any I've seen lately . . .even with the dubious past of Olson.

Posted by: Jon | May 29, 2009 12:35:05 PM

I am going to have to agree with the others, watch them, but watch them from a supporting side. We keep saying it’s inevitable that we will have equal rights, so what does it matter if this fails. Yes it may set a negative precedent, but for how long. How long after the Supreme Court rules against us till the next case, how long until the younger generation gets old enough to vote, how much longer are we supposed to wait? Civil rights wars are not won state by state, they never have been. Major battles may be important, but are we really supposed to wait until Alabama, or Tennessee, decides that being Gay is ok before we are allowed to go to the Supreme Court? The same argument we are using against Prop 8 (that the majority cant decided the rights of the minority) works against the method of going slow and state by state. Some sates will never bow to the tide of humanity, even if we got down to 5 states that didn’t those five would fight even harder to stay different. The basic principles for our freedom is already out there, why are we trying to prove it over and over, we do not have equal rights or protections as provided for in the constitution. No matter how many cases go against us, that wont change, but for every case that goes against us another bigoted argument will be highlighted and countered, another few will decided that this is a pointless fight, and a precious fewer will realize they are not coming from a place of law but of fear and hate. So we should be cheering this odd couple on, we should be rallying behind there march on the supreme court, that way we can watch them closely, if it’s a trick it is already doomed to eventual failure.

Posted by: Randy | May 29, 2009 1:31:06 PM

I've said in other blogs and will here, too: I for one am so ready for this. I think it's time to be bold. I know there is a possibility of being proven wrong, but I feel real good about this.

Posted by: GreenEyedLilo | May 29, 2009 3:33:12 PM

Jon, the doctrine of Full Faith and Credit relates to disputes between one (or more) state(s) and other states, or between one (or more) state(s) and the federal government.

It would come into play with regard to same-sex marriage only if married same-sex couples from a state that allows same-sex marriage, were petitioning the US Supreme Court to force another state to grant to them the same marriage rights that they enjoyed in the state where they were married. Or if the case is against the federal government, then it would be a question of equal benefits to same-sex married couples as their counterpart opposite-sex married couples enjoy.

This case involves two unmarried same-sex couples in California who are seeking to have the federal government force California to grant to them the same right to marry that the 18,000 same-sex married couples in California enjoy. That is an issue of equal protection and due process, but since it isn't an interstate or state v. federal issue, then full faith and credit doesn't really apply.

Having said that, they haven't filed briefs or argued the case yet, so it is possible that they may find some obscure federal case in which residents of a state did effectively utilize a full faith and credit argument against the state that they reside in and where laws or legal standing from no other states were involved, but I doubt it.

Posted by: Dick Mills | May 29, 2009 3:44:52 PM

Here's a thought. We know these cases take years to get to the Supreme Court. If Prop 8 is repealed by the voters in Nov, 2010, allowing gays to marry, this would render the complaint moot. The relief the plaintiffs seek, the right to marry, would already be in place.

Then it wouldn't matter what the Supreme Court might do, they may never hear the case.

Posted by: Bill Ware | May 29, 2009 4:53:30 PM

Bill Ware, one thing that might make this relevant, even if Prop H8 is overturned before a decision comes down is the fact that the California Supreme Court has, in effect, created a caste system. By allowing 18,000 married couples to potentially enjoy greater access to benefits (assuming that there are any benefits of marriage that domestic partners aren't benefiting from), then there could still be a reason for seeking redress from the court.

And, the one other thing that would happen if the SCOTUS ruled in our favor is that never again would a Prop H8 be effective at eliminating our right to marry. Because it would be invalid on it's face, in light of that SCOTUS ruling. So, it could eliminate the back-and-forth every two years of ballot initiatives attempting to re-institute/abolish...

Posted by: Dick Mills | May 30, 2009 12:32:13 AM

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