Editore"s Note
Tilting at Windmills

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August 9, 2010

HOW TO ARGUE MARRIAGE EQUALITY.... In light of last week's federal court ruling on California's Proposition 8, marriage equality received a fair amount of attention on the Sunday morning shows, including interviews with both Ted Olson and David Boies, the legal team that won the case.

On CBS's "Face the Nation," Boies, perhaps best known as the attorney representing Democrats in 2000's Bush v. Gore, faced off against Family Research Council chief Tony Perkins. As expected, Perkins spewed a lot of nonsense, prompting Boies to make plain the limits of far-right rhetoric. (via John Cole)

"Well, it's easy to sit around and debate and throw around opinions appear-- appeal to people's fear and prejudice, cite studies that either don't exist or don't say what you say they do. In a court of law you've got to come in and you've got to support those opinions. You've got to stand up under oath and cross-examination. And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens the right to vote, to make all sorts of statements and campaign literature or in debates where they can't be crossexamined.

"But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that's what happened here. There simply wasn't any evidence. There weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science.

"And it's easy to say that on television. But witness stand is a lonely place to lie. And when you come into court, you can't do that. And that's what we proved. We put fear and prejudice on trial, and fear and prejudice lost."

As the kids say, boo-yah. Perkins can repeat his talking points, and maybe even persuade the uninformed and/or those inclined to agree with him, but when it comes to withstanding scrutiny, Perkins and his ilk have built a house of cards that crumbles with surprising ease.

On a related note, on "Fox News Sunday," Olson, perhaps best known as the attorney representing Republicans in 2000's Bush v. Gore, sparred a bit with host Chris Wallace, who threw just about every GOP talking point he could think of at Bush's former solicitor general. The central point of Wallace's questioning seemed fairly straightforward: if voters want to limit the scope of Americans' rights, they should be able to do so at the ballot box. Olson turned the question around:

"Well, would you like your right to free speech? Would you like Fox's right to free press put up to a vote and say well, if five states approved it, let's wait till the other 45 states do? These are fundament constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It's in the Constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it's encouraging that many states are moving towards equality on the basis of sexual orientation, and I'm very, very pleased about that.... We can't wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated."

Seems pretty obvious, doesn't it?

Steve Benen 8:00 AM Permalink | Trackbacks | Comments (26)

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Posted by: NHCt on August 9, 2010 at 8:12 AM | PERMALINK

There's an interesting op ed in the NYT, that pretty much shreds the 'sanctity of one man/one woman' unions.

In the USA we have serial monogamy, out of wedlock births, no fault divorce. And in other parts of the world (yes, Virginia, we are not alone) polygamy is the norm, as well as concubines, etc.

Gays have constitutional rights. Get over it, Mr. Perkins.

Posted by: DAY on August 9, 2010 at 8:13 AM | PERMALINK

As much as I hate looking at Perkins's puss, I wish they had a camera on him when Boies was making his points. It might have been a priceless moment.
Too bad, Tony, time to find someone else to hate.
I hear they're building an Islamic center within two blocks of the WTC, maybe you can get your little nuts in an uproar over that. You can make your rightious stand - 'That't too close, it's disrectful. 10 miles away, is ok. One for every Commandment.'
Or, hey, there's another immigrant crossing the border so that he and his family can have a better life.
I hope the money he makes is worth it to him, because he is a vile example of humanity.

Posted by: c u n d gulag on August 9, 2010 at 8:17 AM | PERMALINK

Oops, should be "disrespectful."
'Disrectful' sounds like Tony's ass after he gets dressed up as a school boy, and Rush has his way with him...

Posted by: c u n d gulag on August 9, 2010 at 8:20 AM | PERMALINK

"But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away." -- David Boies

I seem to remember a time when television news programs were like that too. But that was back when there were real journalists on the teevee instead of "personalities".

Posted by: SteveT on August 9, 2010 at 8:21 AM | PERMALINK

Does anyone know what brought Olson to such a perspective? (A gay kid, gay sister or brother, gay friend, etc.) I'm not saying he couldn't have come up with it on his own but usually conservative people have a person that made them realize that gay people deserve equality under the law. Especially when he starts arguing that same-sex parents are equal to opposite-sex parents, it just makes me think he's close to a gay couple with children.

Regardless, he's an inspiration.

Posted by: zoe kentucky in pittsburgh on August 9, 2010 at 8:30 AM | PERMALINK

I don't know what brought Olson temporarily to his senses but undoubtedly it is something like zoe speculates about above: some personal interest, a gay relative or friend. Whatever it was, I'm sure its just a case of a stopped clock happening to be right twice a day.

Personally, I will never forget Olson's leading role in stealing a presidential election and desecrating our democracy. His crime against democracy led to the installment of George Bush, an act that cost hundreds of thousands of people their lives as well as our nation's integrity. It also has turned out to mean that global warming will not be dealt with, as it would have been under Gore, and thus might doom our planet to environmental disaster. Bush also tanked our economy and ran up our debt. Thanks Ted.

Ted Olson is a scumbag, not an inspiration.

Posted by: The Fool on August 9, 2010 at 8:40 AM | PERMALINK

In an article in Newsweek in January he seemed to suggest his stance was derived from first principles.

Posted by: Rob in the UK on August 9, 2010 at 8:45 AM | PERMALINK

Olson is a classic western conservative with a good dose of libertarian tossed in. He is what teabaggers think they are.

My favorite part is at the end as he starts expounding on the meaning of this ruling for gay people. You could see Wallace getting twitchy as he was no doubt imagining the irate emails and calls that Faux was going to get. It was awesome. Especially when Wallace agreed that judicial activism catcalls were the refuge of whiners. Win!

Posted by: JCT on August 9, 2010 at 8:45 AM | PERMALINK

Bigotry against homosexuals is a fading element of our society. The final battle is yet to be identified, but in the end the vast majority of people in the USA 30 and under have no interest in perpetuating this nonsense.

Posted by: MikeBoyScout on August 9, 2010 at 8:47 AM | PERMALINK

It is always a good thing, of course, to see the Pompous Prejudiced get put in their place by a skillful application of logic; but the sad thing is that these sort of rebuttals aren't going to make the least bit of difference to Mr. Perkins, or any of his ilk. It will be just another excuse for him to go back to his office and dash off a whiny blogpost about how badly he was treated by the Evil Liberals, or the Evil Liberal Media, and how everyone should send the FRC some more of their money to keep on doing God's Work...

And, BTW, when it comes to the question "Would you like Fox's right to free press put up to a vote....": I'm sure FOX, and the vast majority of their viewership would only be too happy to get behind a concept like that. And it wouldn't be FOX who would be blacked out...

Posted by: Jay C on August 9, 2010 at 8:56 AM | PERMALINK

For a biblically correct view on marriage, check out:


Posted by: DAY on August 9, 2010 at 9:12 AM | PERMALINK

"But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that's what happened here. There simply wasn't any evidence. There weren't any of those studies. There weren't any empirical studies. That's just made up. That's junk science."

Another demonstration that facts have a liberal bias.

This is also a perfect description of what happened at the Kitzmiller v. Dover Area School District four years ago and what would happen if global climate change ever when to court.

Posted by: arkie on August 9, 2010 at 9:21 AM | PERMALINK

Having been confronted with what's actually in the constitution, as opposed to what's in their fantasy-world constitution, the Fox News folks' heads promptly exploded.

I wonder if we should have some kind of name for the fake-ass constitution that the Fox/Tea Party set loves so much. The one that enshrines Christianity as a state religion, deprives citizenship to the non-native born, gives everyone a right to Medicare, bans health insurance reform, gives disgraced ex-politicians authority over zoning decisions in lower Manhattan etc. Maybe we could call it "the Konstitushun" or something.

Posted by: Basilisc on August 9, 2010 at 9:21 AM | PERMALINK

Perhaps Olson does have someone close to him who is gay (most everyone does whether they know it or not) but it is most likely the fact that lawyers generally do not pick and choose their cases by their personal preferences. They work for the one who hires them and most recite "everyone is entitled to representation" as a personal mantra. They work hard to win for the one who hires them because it's their responsibility to do so after taking the case and because if they don't no one else would hire them. I say this from experience after several years working for and with lawyers.

Posted by: gelfling545 on August 9, 2010 at 9:26 AM | PERMALINK

Lots of discussion on glbt blogs on the impact of Judge Walker's ruling. It may be limited to California because it may not be appealed. The backers of the proposition may lack standing to appeal, and both defendants with standing in the case, Gov. Schwarzenegger and Attorney General Jerry Brown, say they won't appeal it. Therefore, no appeal, no Ninth Circuit ruling, no appeal to SCOTUS. The idea that the Prop (H)8 backers have no standing to appeal is apparently based on an Arizona case, Arizonans for Official English v. Arizona:

(a) Grave doubts exist as to the standing of petitioners AOE and Park to pursue appellate review under Article III's case or controversy requirement. Standing to defend on appeal in the place of an original defendant demands that the litigant possess "a direct stake in the outcome." Diamond v. Charles, 476 U.S. 54, 62. Petitioners' primary argument--that, as initiative proponents, they have a quasi legislative interest in defending the measure they successfully sponsored--is dubious because they are not elected state legislators, authorized by state law to represent the State's interests, see Karcher v. May, 484 U.S. 72, 82. Furthermore, this Court has never identified initiative proponents as Article III qualified defenders. Cf. Don't Bankrupt Washington Committee v. Continental Ill. Nat. Bank & Trust Co. of Chicago, 460 U.S. 1077. Their assertion of representational or associational standing is also problematic, absent the concrete injury that would confer standing upon AOE members in their own right, see, e.g., Food and Commercial Workers v. Brown Group, Inc. [...]

Posted by: nanuq on August 9, 2010 at 9:26 AM | PERMALINK

It intrigues me that the folks protesting the judges ruling are allergic to citing or challenging any of his findings of fact.

Specifically, I would think that theyd be ready to argue Fact #48: Same-sex couples are identical to opposite-sex couples in the characteristics relevant to the ability to form successful marital unions.

As well as #55: Permitting same-sex couples to marry will not affect the number of opposite-sex couples who marry, divorce, cohabit, have children outside of marriage or otherwise affect the stability of opposite-sex marriages.

Perkins has the option to take #48 apart by naming the purported problems with the 11 pieces of evidence used by the judge, but he doesn't. He would rather use broad generalizations and unsubtle innuendo that a gay judge can't be trusted.

Posted by: Bose on August 9, 2010 at 9:36 AM | PERMALINK

Fool @ 8:40, who can know the heart of a scumbag? Especially a scumbag responsible for putting Shrub in office and then watching the subsequent destruction Shrub was responsible for. I agree that his return to sanity was likely triggered by a personal interest, but one much closer than you speculate. You may recall that Clinton warned Shrub about Al Queda during the leadership transition and we know for fact that Shrub’s focus was non-existent. Shortly after Olson put Shrub in power, he paid a very personal price. His wife rode a plane into the Pentagon. Do you think he might have pondered for a second what a Gore presidency might have done differently?

Posted by: Chopin on August 9, 2010 at 10:33 AM | PERMALINK

I was particularly interested in Tony Perkins' constant references to the judge in the case being gay.

By the way, my "gaydar" goes off at full tilt when I see Tony Perkins...

Posted by: phoebes-in-santa fe on August 9, 2010 at 10:46 AM | PERMALINK

Marriage is a partnership that can only be ended by a civil court. It was the blending of Church and State that made this a problem. As in France, we should all go to the civil ceramony and have a legal union. After all you can see how marriage is a legal partnership like a business, you share the assets and the liabilities , you share the the needs for your children just like a business shares the need for its employees. If you can't make it you go to a civil court to end the partnership and divide the assets and liabilities. Now that is the legal part. if you wish to marry spiritually you can go to a church afterwards and have your your partnership blessed by God and have a Marriage. What we need is to have all the rites of the old marriage idea transfer to the legal union for everyone and the marriage be a a spiritual bonding as it was meant to be. They do this in France with no problem. The marriage rites people should be satisfied. We are spending millions of dollars if not more on thid issue in a terrible economy.

Posted by: Pat Wallace on August 9, 2010 at 11:03 AM | PERMALINK

I never watch the Sun am gasbag fests. For some reason, though [God talking?] I happened to catch the Olson - Wallace exchange yesterday. It does not matter why Olson is in this fight, and I know the guy has lots of baggage, but man, it was fun to watch a good lawyer cut Wallace to shreds. It was clear, honest, and based on the constitution. Wallace was clearly groping, after the inital salvos were answered, and like much of the right-wing, once you tear apart their core idea/ false premise, there is nothing left.

Dem. candidates. Hint. Hints.

Posted by: bigutah on August 9, 2010 at 11:24 AM | PERMALINK

"And what we saw at trial is that it's very easy for the people who want to deprive gay and lesbian citizens the right to vote, to make all sorts of statements and campaign literature or in debates where they can't be crossexamined."

An odd error that nobody seems to have noticed; it's in CBS's official transcript.

Posted by: Swift Loris on August 9, 2010 at 11:25 AM | PERMALINK

I wonder if losing his wife was an impetus for Olson to become less right-wing. If she was the more doctrinaire of the couple, he could be freer to evolve without her than if he had to worry about whether his caseload would impact his sex life.

Posted by: joe on August 9, 2010 at 12:31 PM | PERMALINK

Swift Loris: I think Americablog put a "(sic)" after the "right to vote". Obviously only a slip of the tongue.

Posted by: emjayay on August 9, 2010 at 2:42 PM | PERMALINK

By the way, does anyone know anything about all the important serious peer reviewed research the Family Research Council does?

Posted by: emjayay on August 9, 2010 at 2:45 PM | PERMALINK

I'm all for simple solutions and that includes Olson's motivation. Not any sort of "I saw the light" moment but it's a good case to have on one's resume, especially when it still looked like it might go up all the way to the Supreme Court. I'm not even sure that anyone did pay him; it might have been done pro bono and still be worth while.

Posted by: exlibra on August 9, 2010 at 4:00 PM | PERMALINK



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