Moyers, Boies, & Olson
I've just listened to the segment of Bill Moyers Journal in which he talks with David Boies and Ted Olson about their case for marriage equality. He talks to them for nearly fifty minutes, not just two minutes for the juicy soundbites. I don't think I can embed the video, but here's the link to the program of 26 February 2010.
Isn't it refreshing that Bill Moyers, on his weekly program and in all his work as a journalist, strives for truth rather than some misguided notion of "balance"!
As I listened to the discussion I noted two things that seemed significant to me. I was fascinated to watch how carefully Olson listened when Boies was answering Moyers, or how carefully Boies listened to Olson answering Moyers — this is not a confrontational model of television. Second, I was interested to see how thoroughly Olson and Boies realized that their position is the right one — just try to find weasel words, prevarications, or ambiguities in what they say and you'll hear none, certainly nothing to compare to the anti-gay crowd's "could"s, "might"s, or "possibily"s.
For flavor, and to entice you into spending so much of your time listening, here are a few excerpts from the discussion that caught my ear.
BILL MOYERS: But the voters in California spoke very clearly, 52 to 48. The referendum said, "Only marriage between a man and a woman is valid or recognized in California." And you're telling the majority of those voters they're wrong?
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.
[somewhat later]
BILL MOYERS: And yet your opponents kept coming back to the argument that the central reason for Proposition 8, and I'm quoting here, is it's role, quote "in regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation."
TED OLSON: We have never in this country required an ability or a desire to procreate as a condition to getting married. People who are at 70, 80, 90 years old may get married. People who have no interest in having children can get married.
And what that argument does is tip it on its head. The Supreme Court has said that the right to get married is a fundamental individual right. And our opponents say, "Well, the state has an interest in procreation and that's why we allow people to get married." That marriage is for the benefit of the state. Freedom of relationship is for the benefit of the state." We don't believe that in this country. We believe that we created a government which we gave certain authority to the government. The government doesn't give us liberty, we give the government power to a certain degree to restrict our liberty, but subject to the Bill of Rights.
[somewhat later]
DAVID BOIES: One of the reasons we put the individual plaintiffs on the stand was for the judge and hopefully for the appellate court to see the human face of this discrimination. To see the cost, the pain that this kind of discrimination causes. Because Americans believe in liberty. We believe in equality. It's baked into our soul.
The only way that we have engaged in the kind of discrimination that we have, historically, is by somehow overlooking the humanity of the people that we discriminate against. We did that with African Americans. We did that with Asians. We did that with American Indians. We did that with women. We're doing it with gays and lesbians today.
We somehow put out of our mind the fact that we're discriminating against another human being by characterizing them as somehow not like us. Not equal to us. Not fully human. Not a full citizen. And that's what is so pernicious about this campaign.
During the discussion Ted Olson also pointed out this inconsistency: 1) in Lawrence v. Texas the Supreme Court found that laws prohibiting intimate sexual relations between persons of the same sex were unconstitutional; 2) the Supreme Court has said that marriage is a fundamental constitutional right; and 3) laws that seek to prohibit same-sex marriage hold that anyone who participates in constitutionally protected #1 cannot participate in constitutionally protected #2. How unreal is that?
In: All, Current Events, Faaabulosity, Personal Notebook
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on Tuesday, 2 March 2010 at 02.55
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Excellent excerpts. I especially cheer Olson's statements about the fallacy of marriage being for the benefit of the state, and the state having an interest in procreation. How anyone who claims to be a conservative could endorse such notions is beyond me, except that conservatives are big on authoritarian power and control. So maybe that desire trumped notions about rights residing in individuals.
I suppose the state might in some circumstances have an interest in procreation in a macro sense. But under the Constitution and the clear intent of those who wrote it, the state can have no interest in whether a particular person or couple can, or intend to, procreate. I can't imagine even a second-rate lawyer seriously presenting an argument to the contrary.
In any case, the more thoroughly arguments against allowing any two people who wish to marry the right to do so are examined, the more clear it becomes that those arguments are a sorry blend of ignorance and absurdity.
on Tuesday, 2 March 2010 at 16.46
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…and the state having an interest in procreation.
Can't count the number of times that the Frogette and I have been told that our marriage was a sham since we decided not to procreate. Good thing we don't live in California anymore.
on Tuesday, 2 March 2010 at 18.44
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You are correct, SW, that shining light on the "arguments" against marriage equality show ever more clearly that there's no there there. This is surely one of the valuable outcomes of Perry v. Schwarzenegger: putting the so-called arguments on record, with witnesses under oath. The anti-equality case is a house of cards in a strong hurricane wind of truth and justice.
I was also startled to hear so starkly, but usefully, the observation that saying the state has an interest in procreation is so close to fascism or communism that it's a very odd "argument" to be hearing from the mouths of conservatives and self-proclaimed libertarians.
Thanks for the comment, Kvatch. We have a number of married friends who have made a decision and chosen not to procreate. Like you, I think they would be surprised to hear people tell them that their marriage is a sham, but once you start down that slippery slope of holier-than-thou moral disapproval–well, there's just so much to disapprove of, isn't there?