Law postsWednesday June 26, 2013
Boies on the Prop 8 Cross-Examination: 'Wouldn't America fit the American ideal better the day it allows gays and lesbians to marry?'
I linked to this in the past, never posted to it, but I thought that today, of all days, was a day worth revisiting it. It's from three years ago.
How does calm and rational win over emotional and combative? You enter a court of law with David Boies on your side:
I love the matter-of-fact logic he used to get the hostile witnesses to come around:
They were confronted with very simple questions, like “Do you think marriage is important?” Now what are they going to say? No? After all, they're trying to defend “traditonal marriage.” Of course they have to say marriage is important. “Do you think marriage helps children who are being raised? Do you think it hurts people not to be married, if they want to get married? Does that cause them disadvantages?”
They admitted, on the witness stand, each element of our case: that preventing gays and lesbians from marrying hurt them in serious social, psychological and economic ways; that preventing gays and lesbians from marrying hurt the children that they were raising--and hundreds of thousands of children are being raised today by gay and lesbian couples in the United States. And finally, there was simply no evidence that allowing gays and lesbians to marry could in any way harm heterosexual marriage ...
The key witness they had, a guy named Mr. Blankenhorn ... in the end, there was a question and answer that talked about, “Isn't American about equality? Don't we want equality for all of our citizens.” These are questions that it's hard to answer 'no' to. “Isn't it a lack of equality when we say gays and lesbians can't get married?” He had to agree to that. And finally, “Wouldn't America fit the American ideal better the day it allows gays and lesbians to marry?”
And he said yes.
And today the Supreme Court said yes. At least on a state-to-state basis.
Tweet of the Day: DOMA Dead
This is mine but there are many like it out there in reaction to the Supreme Court's ruling striking down the Defense of Marriage Act (DOMA):
Andrew Sullivan, one of the first to push for gay marriage, is your one-stop shopping today:
- Live-Blogging the SCOTUS ruling. Sullivan quote: “We did it in part for those we left behind. And part of the reason I am crying right now is remembering them. I want them to come to the party. I want them to see they didn’t die in vain.” This link also includes Dan Savage's response to Huckabee's “Jesus wept” line.
- Tweet Reax, including church bells ringing in Minneapolis and the Seattle Gay Men's Chorus singing the National Anthem.
- Map of the Day: From legal ban and constitutional ban, to civil unions and gay marriage.
- I Believe. Sullivan: “Same-sex marriages have always existed because the human heart has always existed in complicated, beautiful and strange ways. But to have them recognized by the wider community, protected from vengeful relatives, preserved in times of illness and death, and elevated as a responsible, adult and equal contribution to our common good is a huge moment in human consciousness.”
Justice League: Ginsburg on Rehnquist, Roberts
“Ginsburg's frustrations have grown over the years. She got along well with William Rehnquist, the late Chief Justice ... 'I was very fond of the old Chief,' Ginsburg told me. As for his successor, Roberts, Ginsburg offered this faint praise: 'For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.'”
-- from “Heavyweight: How Ruth Bader Ginsburg has moved the Supreme Court,” by Jeffrey Toobin, in the March 11, 2013 New Yorker. A slideshow of Justice Ginsburg can be found on the New Yorker's site here. The article itself is only excerpted—another reason, as if you need it, to subscribe to The New Yorker. Great stuff on her feminist victories before the U.S. Supreme Court in the 1970s, her views of the judicial process (best to move slowly and carefully), and why she was ultimately against Roe v. Wade (it didn't move slowly or carefully, and thus allowed enemies to gather). Apparently she's a favorite of Pres. Obama (another conservative liberal). But will she retire before his term ends in 2017, allowing him to appoint a successor? Is the party of the president even relevant when deciding to leave the Supreme Court? “I think it is for all of us,” she says.
What Do Corporations, Prominent Republicans and Obama Have in Common? They're All Against Prop 8
What do dozens of corporations, a group of prominent Republicans, and Pres. Obama have in common? They're all against Prop 8. From Richard Socarides' post, “Obama's Brief Against Proposition 8 Goes Far,” on The New Yorker site, March 1, 2013:
Until last May, the President was not even on record as supporting same-sex marriage. Early on during his first term, gay-rights advocates were enraged when the Justice Department filed a grossly insensitive, Bush-era brief in a lesser known gay-rights case. Because the federal government is not a party to the California case, he could have sat this one out, or asked the Supreme Court to rule on narrow procedural grounds that would bring marriage only to California.
Instead, his Administration has filed a brief that goes further than he ever has before, and further than the 9th Circuit Court of Appeals went in its reasoning when it affirmed the lower court’s ruling throwing out Proposition 8. Nor is Obama alone on this one: a group of prominent Republicans submitted an amicus brief of their own against Proposition 8, and dozens of corporations have signed one, too. Even the State of California, which had refused to defend the law, submitted a new amicus brief on Thursday, asking the Court to declare its own law unconstitutional."
Seattle, December 9, 2012
Two Reasons Conservatives Should Be Proud SCOTUS Upheld Obamacare
1. The individual mandate, the crux of the suit against Obamacare, was their idea in the first place:
The mandate made its political début in a 1989 Heritage Foundation brief titled “Assuring Affordable Health Care for All Americans,” as a counterpoint to the single-payer system and the employer mandate, which were favored in Democratic circles. In the brief, Stuart Butler, the foundation’s health-care expert, argued, “Many states now require passengers in automobiles to wear seat-belts for their own protection. Many others require anybody driving a car to have liability insurance. But neither the federal government nor any state requires all households to protect themselves from the potentially catastrophic costs of a serious accident or illness. Under the Heritage plan, there would be such a requirement.” The mandate made its first legislative appearance in 1993, in the Health Equity and Access Reform Today Act—the Republicans’ alternative to President Clinton’s health-reform bill—which was sponsored by John Chafee, of Rhode Island, and co-sponsored by eighteen Republicans, including Bob Dole, who was then the Senate Minority Leader.
--Ezra Klein in “Unpopupular Mandate” in the June 25, 2012 New Yorker
2. Calling the mandate a 'tax,' the argument that won the day, was their idea, too:
In declaring the mandate a tax, [Chief Justice John] Roberts broke with President Obama, who had publicly insisted the law didn't constitute a tax.
Roberts declared that Congress could not force citizens to buy health insurance under the Commerce Clause—agreeing with the four conservative justices on that point—but that the Commerce Clause ultimately didn't matter, because the mandate fell under Congress's power to levy taxes.
Graetz said it wasn't a matter of Roberts', or any of the justices' ideology; it's simply that tax law has always been broadly interpreted. ...
“That's clearly constitutional. No one says that's not constitutional. That was upheld long ago. The only question is whether because they didn't call it a tax, that would mean it wasn't a tax,” he said. “Obviously Justice Roberts didn't think what the president called it had any legal effect.”
--Reid Pillifant, “How John Roberts Saved Obamacare,” Capital New York
I give Mitt Romney a month before he starts taking credit for it.
UPDATE: Rick Perlstein, author of “Before the Storm” and “Nixonland,” writes about the core conservatism of Obamacare (psst: individual responsibility and reduction of tax-eaters) in The New York Daily News.
This time, they were in rhythm.
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