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To SCOTUS: Love Is the Heart of Marriage

Boies and Olson

Proposition 8 litigators David Boies and Theodore Olson filed a brief with the Supreme Court this past week previewing the arguments they will present to the Justices on March 26. In the brief, Boies and Olson criticize marriage equality opponents for their “cramped definition of marriage” that largely channels heterosexual potential into “responsible procreation.”

“Proponents do not even mention the word ‘love.’ They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right.”

David Boies and Theodore Olson have argued 60 Supreme Court cases between them including landmark cases like Citizens United v. Federal Election Commission. They argued on opposite sides of Bush v. Gore in 2000. Boies and Olson were both on Time magazine’s list of most influential people in 2010.

From David Boies and Theodore Olson’s Brief for Respondents to the Supreme Court:

This case is about marriage, “the most important relation in life,” Zablocki v. Redhail, 434 U.S. 374, 384 (1978), a relationship and intimate decision that this Court has variously described at least 14 times as the right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status…

Proposition 8 engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriage. Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” Pet. App. 262a, and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians – especially their children – “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. Of Educ., 347 U.S. 483, 494 (1954).

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State – society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right.

David Boies & Ted Olson after Prop 8 oral arguments at 9th Circuit Court of Appeals

David Boies & Ted Olson after Prop 8 oral arguments at 9th Circuit Court of Appeals

Rachel Maddow interviewed Boies and Olson at NYU School of Law in October (watch below) on marriage equality and their views about the decision facing the Supreme Court.

“The Supreme Court has made erroneous decisions in its history,” said Olson, pointing to rulings such as Plessy v. Ferguson, the Dred Scott decision, and the upholding of the government’s right to intern Japanese-Americans. But in the end, he said, the Supreme Court will struggle with these issues and ultimately get it right.

“We believe the Supreme Court will get it right. David and I are writing no justice of this court off,” Olson continued. “We have a little joke—David will ensure that we get the ones that votes his way on Bush vs. Gore, and I’ll get the side of the court that I got, so it will be unanimous.”

As for how to convince Justice Scalia and other conservatives to support the issue of marriage equality, Boies noted that Justice Scalia has said that his job was not to impose his own personal views, but to enforce the constitutional guarantees that we have. “I think it’s easy to recognize the constitutional guarantee of the right to marry.  What we now have to do is recognize that there’s no basis to discriminate based on sexual orientation,” said Boies. “That is an argument that isn’t Republican or Democrat, conservative or liberal. It is an argument that appeals to everybody who shares the basic principle that all American do of equality under the law, justice for everybody.”

Olson and Boies said they would aim for a unanimous decision, but they acknowledge that in a realistic worst-case scenario, the Supreme Court may deny same-sex marriage as a constitutional right and rule that states must decide the issue. In conclusion, said Boies, we all have a lot of work to do to undo the “pain and evil” of this discrimination against gays and lesbians.

Rachel Maddow Interview with David Boies and Theodore Olson

NYU School of Law, October 2012.

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