Monday, July 20, 2009

Attorney David Boies Writes About Marriage Equality and the Constitution

David Boies, who represented Al Gore in the Bush Vs. Gore Supreme Court case which ultimately decided the disputed 2000 presidential election, faced off with Ted Olson who represented George Bush.

Now they have teamed up to argue against Proposition 8 in a federal case that is working its way through the federal court system, and ultimately, may head to the U.S. Supreme Court.

David Boies wrote an elegant op-ed in the Wall Street Journal. Here are some amazing excerpts.
...there is no legitimate state policy underlying Proposition 8. The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion. It is difficult to the point of impossibility to envision two love-struck heterosexuals contemplating marriage to decide against it because gays and lesbians also have the right to marry; it is equally hard to envision a couple whose marriage is troubled basing the decision of whether to divorce on whether their gay neighbors are married or living in a domestic partnership. And even if depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex, it is impossible to see how that could be thought to be as likely to lead to a stable, loving relationship as a marriage to the person they do love.


The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens. In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity. As Justice Anthony Kennedy elegantly wrote rejecting the notion that a history of discrimination might trump constitutional rights, "Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."


Gays and lesbians are our brothers and sisters, our teachers and doctors, our friends and neighbors, our parents and children. It is time, indeed past time, that we accord them the basic human right to marry the person they love. It is time, indeed past time, that our Constitution fulfill its promise of equal protection and due process for all citizens by now eliminating the last remnant of centuries of misguided state discrimination against gays and lesbians.
I highly recommend you read the whole piece. Though we the California LGBT population are currently debating when to go back to ballot to repeal Prop 8, it's very encouraging to know that we have such an amazing lawyer doing amazing work on another front of the battle to defeat the discriminatory measure.


  1. I admire Boies' eloquence and logic. Unfortunately, he undercuts the power of his words by referring to the ban on same sex marriages as "the last remnant of centuries of misguided state discrimination against gays and lesbians," in light all the other ways in which lesbian, gay and bisexual people are discriminated against, not to mention the ongoing challenges that I and other trans people face, the least of which is the uncertainty caused to the validity of our marriages by bans on same sex marriage.

  2. Great point and couldn't agree with you more. Discrimination faced by trans people I fear is even greater than what many gays, lesbians and bisexuals face. We may in fact get legislation passed for our protection, but the struggle to includes trans protections is even more difficult. Such ridiculous references to good legislation as "the bathroom bills" (and more) is indicative of the amount of work still facing us when it comes to public education in regards to the trans population.