David Boies and Ted Olson appeared on Bill Moyer's show and during the appearance again laid out what ought to be the easily understood rationale as to why bans on same sex marriage are unconstitutional. Anyone who can (1) put aside religious fanaticism and (2) understand that religious freedom under the U.S. Constitution extends to ALL citizens, not just far right Christians should be able to grasp and support the striking down of Proposition 8 and, indeed, all state marriage bans such as Virginia's foul Marshall-Newman Amendment that bars ANY legal recognition of same sex relationships. When all the other smoke and mirrors and straw man arguments are stripped away only one thing remains to support such state law bans: religious based discrimination. During their interview by Moyer, both Boies and Olson stated what should be the talking points for all of us arguing for marriage equality. Here are some highlights:*
TED OLSON: . . . I think the more that people understand that gay and lesbian individuals wish to have the same loving relationship that other individuals do. And that Proposition 8 in California says their relationship isn't recognized by the state. The harm that that does to those loving individuals, who are our fellow citizens -- they are our doctors, our lawyers, our neighbors, our friends, our coworkers -- we are doing great harm by discriminating against people.
*
And I think the more people hear what we have to say, what David and I have to say, the more people will understand that. That's one of the wonderful things about the fact that we have come together. Because people will ask the question that you've just asked. And other people will ask, "Why are you doing this? What is your explanation?" And gives us a chance to explain the damage that's being done by discrimination, and the great burden that would be lifted if we finally stop.
*
TED OLSON: We're not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court's recognized that over and over again. We're talking about whether two individuals who will be -- should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.
*
At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn't create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.
*
DAVID BOIES: If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, "This is democracy. But it's also democracy in which we protect minority rights." The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it's 52 percent or 62 percent or 72 percent or 82 percent of the people. They can't say, for example, that blacks and whites can't go to school together -- even though 82 percent of the people may think that. They can't say that women aren't allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages -- even though a majority of people might vote that way in some places.
*
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted said is very important. Nobody's asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court.
*
DAVID BOIES: But what the Constitution says is that every citizen gets equal protection of the laws. It doesn't just say heterosexuals. . . . the 14th Amendment was passed just after we got rid of slavery, which prohibited slaves from getting married. And one of the things that happened when slavery was abolished was large numbers of African Americans rushed to get married, because they viewed this as one of the most important human relationships. And they viewed the recognition, the sanctioning of that relationship as critical to their ability to live together as a family.
*
And the same thing is happening with gays and lesbians in our society today. We're saying to these people, "You are somehow less than human. We're not going to give you all of humanity's rights." Because remember, if we recognize them as human, if we recognize them as full citizens, the Constitution guarantees that they have equal protection of the laws. They have the same rights as any heterosexual.
*
BILL MOYERS: So, you're both comfortable invalidating seven million votes in California?
*
TED OLSON: Well, this happens when the voters decide to violate someone's constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don't need protection from the courts. The original Constitution didn't have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, "Well, we're not going to ratify that Constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble," and those sorts of things.
*
DAVID BOIES: . . . When you're dealing with matters of human rights and civil rights, our Constitution and our history is that you don't deprive people of those rights simply based on majority rule.
*
The transcript is lengthy but worth the read. In my view as an attorney, Olson and Boies have it right. The question is whether or not the courts will side with equal protection for all, or religious based bigotry continue to marginalize and denigrate lives.
TED OLSON: . . . I think the more that people understand that gay and lesbian individuals wish to have the same loving relationship that other individuals do. And that Proposition 8 in California says their relationship isn't recognized by the state. The harm that that does to those loving individuals, who are our fellow citizens -- they are our doctors, our lawyers, our neighbors, our friends, our coworkers -- we are doing great harm by discriminating against people.
*
And I think the more people hear what we have to say, what David and I have to say, the more people will understand that. That's one of the wonderful things about the fact that we have come together. Because people will ask the question that you've just asked. And other people will ask, "Why are you doing this? What is your explanation?" And gives us a chance to explain the damage that's being done by discrimination, and the great burden that would be lifted if we finally stop.
*
TED OLSON: We're not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court's recognized that over and over again. We're talking about whether two individuals who will be -- should be treated equally, under the equal protection clause of the Constitution. The same thing that the Supreme Court did in 1967, which recognized the Constitutional rights of people of different races to marry.
*
At that point, in 1967, 17 states prohibited persons from a different race of marrying one another. The Supreme Court, at that point, unanimously didn't create a new right, the right was the right to marry; the Supreme Court said the discrimination on the basis of race in that instance was unconstitutional.
*
DAVID BOIES: If you didn't tell the majority of the voters they were wrong sometimes under the Constitution, you wouldn't need a constitution. The whole point of the Bill of Rights and the 14th Amendment is to say, "This is democracy. But it's also democracy in which we protect minority rights." The whole point of a Constitution is to say there are certain things that a majority cannot do, whether it's 52 percent or 62 percent or 72 percent or 82 percent of the people. They can't say, for example, that blacks and whites can't go to school together -- even though 82 percent of the people may think that. They can't say that women aren't allowed to vote, or are not allowed to work in the workplace, or not allowed equal rights or equal wages -- even though a majority of people might vote that way in some places.
*
There are certain rights that are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for. And remember, what Ted said is very important. Nobody's asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court.
*
DAVID BOIES: But what the Constitution says is that every citizen gets equal protection of the laws. It doesn't just say heterosexuals. . . . the 14th Amendment was passed just after we got rid of slavery, which prohibited slaves from getting married. And one of the things that happened when slavery was abolished was large numbers of African Americans rushed to get married, because they viewed this as one of the most important human relationships. And they viewed the recognition, the sanctioning of that relationship as critical to their ability to live together as a family.
*
And the same thing is happening with gays and lesbians in our society today. We're saying to these people, "You are somehow less than human. We're not going to give you all of humanity's rights." Because remember, if we recognize them as human, if we recognize them as full citizens, the Constitution guarantees that they have equal protection of the laws. They have the same rights as any heterosexual.
*
BILL MOYERS: So, you're both comfortable invalidating seven million votes in California?
*
TED OLSON: Well, this happens when the voters decide to violate someone's constitutional rights. David mentioned that we have a Constitution and we have an independent judiciary for the very protection of minorities. Majorities don't need protection from the courts. The original Constitution didn't have the Bill of Rights attached to it. And the framers of our Constitution had a big debate and people said, "Well, we're not going to ratify that Constitution unless you attach a Bill of Rights, which protects individual liberty, individual freedom, the right to speak, the right to assemble," and those sorts of things.
*
DAVID BOIES: . . . When you're dealing with matters of human rights and civil rights, our Constitution and our history is that you don't deprive people of those rights simply based on majority rule.
*
The transcript is lengthy but worth the read. In my view as an attorney, Olson and Boies have it right. The question is whether or not the courts will side with equal protection for all, or religious based bigotry continue to marginalize and denigrate lives.
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