Boies Will Be Boies

David Boies, who is partnering with Ted Olson to challenge the California Marriage Amendment in federal court, has a commentary in the Wall Street Journal. If I was a heavy drinker, I would set up a drinking game based on downing a shot every time he invokes one of the standard bad arguments. I expected more out of someone of his stature.

It is all after the jump, if you care to read my analysis.

Meanwhile, over on my namesake blog, I have looked at last bit of coverage of last week's convention of Episcopalians, where marriage neutering made gains in that denomination.

[Make the jump if you want to read more.]

First, he invokes the race card.

Then he invokes "equal protection".

Then he writes about the "right to marry the person you love":

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it. In 1978 the Court (8 to 1, Zablocki v. Redhail) overturned as unconstitutional a Wisconsin law preventing child-support scofflaws from getting married. The Court emphasized, "decisions of this Court confirm that the right to marry is of fundamental importance for all individuals." In 1987 the Supreme Court unanimously struck down as unconstitutional a Missouri law preventing imprisoned felons from marrying.

Notice that none of these, nor Loving v. Virginia, recognized brideless or groomless "marriages". Other court cases have shown that states can have certain limitations on marriage licensing. So his argument is like saying, "The court said that you can't discriminate against me in hiring because I have dark skin. Therefore, you can't discriminate me in hiring because I can't do job!"

Then gets into "How does this harm your marriage?"

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.

Neutering state marriage licensing – especially via court - changes the very nature of marriage for everyone against our will. It is profoundly naïve to think it will have no effects other than making same-sex couples and their families happy and giving those couples access to benefits and more respect.

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.

This is a red herring and presents a dichotomy when there are many more options. Most marriage defenders do not say that everyone should get married. People of any sexual orientation can remain unmarried – whatever form that takes. Marriage is optional. If you aren't attracted to someone of the opposite sex, then there's a good chance that marriage isn't the right thing for you. I'd still like to see a good argument as to why California's domestic partnerships aren't enough "protection" for same-sex couples.

Moreover, there is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation.

Without arguing that point, there is a case to be made that having it be official state policy that there is no difference between a bride+groom and other kinds of voluntary associations will encourage confusion in impressionable youths whose behavior patterns are highly malleable, and it does dilute the meaning of marriage and its place in society.

He then goes on to "what rights are next?"

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.

I know this is integral to his case, but the fact is that one need not disapprove of homosexual behavior to affirm that marriage unites the sexes. Plenty of people who had never thought that people could be homosexual as an orientation understood that marriage united the sexes, and it wasn't to be mean to gay people. Also, the restoration of bride+groom marriage licensing followed the neutering of marriage licensing by a handful of judges who voted to neuter marriage. So why it is okay for a handful of people to vote on something, but not okay for a larger number?

In 2003 the United States Supreme Court in Lawrence v. Texas held that states could not constitutionally outlaw consensual homosexual activity.

Okay, but that doesn't mean a state must issue marriage licenses to brideless or groomless couples – and notice that the decision didn't say they did, or you wouldn't be bringing your case now.

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief.

One need not invoke religion in their rejection of marriage neutering.

Then he goes for the "We are your family and neighbors" argument.

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.

Oh, is this the last remnant? So does that mean that there will be nothing for Lambda do to if the federal courts neuter marriage in federal and state law? Too bad this quote wouldn't mean much in court.

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman.

Actually, the argument for Prop 8 is that it was lawfully voted in by the governed and does not violate the Constitution.

If the fact that marriage unites the sexes can be dismissed as a "tautology", then so can statements like "the sun rises in the east" and "east is that way, west is this way", "this is right, this is left", "this is blue, and this is red" and many other things, including "we should follow the Constitution".