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June 25, 2010

What's Next in the Marriage Wars: Olson and Boies on Prop 8

In February 2010 Bill Moyers talked with lawyers Ted Olson and David Boies. Once adversaries in 2000's Bush v. Gore Supreme Court case, now two of the nation's premier lawyers -- one conservative and one liberal -- teamed up to make the constitutional case for same-sex marriage. The duo has just finished presenting their arguments to the court against California's Proposition 8 -- the 2008 ballot initiative that put an end to same-sex marriage in that state. Find out what brought these two together over the issue and more about the case below. Also, in a Web exclusive, Olson and Boies talk about Bush v. Gore. and Citizens United v. FEC.
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Continue reading "What's Next in the Marriage Wars: Olson and Boies on Prop 8" »


February 26, 2010

Debating Same-Sex Marriage

(Photos by Robin Holland)

This week on the JOURNAL, Bill Moyers spoke with prominent lawyers Ted Olson and David Boies about their legal challenge to California's ban on same-sex marriages. Olson, a conservative, and Boies, a liberal, are best known for facing off before the Supreme Court in Bush v. Gore following the disputed 2000 election. Now, they've joined forces to argue that gay and lesbian couples should have the right to marry.

Though a decision of the California Supreme Court legalized same-sex marriage in the state for several months in 2008, voters' passage of the ballot initiative Proposition 8 that November - by a margin of 52.3 % to 47.7 % - amended the state constitution to declare that "only marriage between a man and a woman is valid or recognized in California."

Proponents of gay marriage have been divided over how to respond to Proposition 8. Some have advocated challenging the ban in federal court as a violation of the Constitution's guarantee of equal protection under the law, as Olson and Boies are attempting, but others fear an unfavorable legal precedent if the opposition wins. Instead, they have suggested running ballot initiatives in hope of repealing Proposition 8 by the democratic process and avoiding the risk of losing in federal court.

Ted Olson explained why he took on the case despite many other conservatives' view that it would be judicial activism for a federal court to strike down the California law:

"It's unfortunate that people think of this as something that is a political issue or a conservative or liberal issue. It is a matter of human rights and human decency and liberty. Many conservatives are libertarians, and they think that the government should allow people to live their lives the same way that other people live their lives under the Constitution, and be treated equally without the government deciding who they can live with or who they can be married to... We're not advocating any recognition of a new right. The right to marry is in the Constitution. The Supreme Court's recognized that over and over again. We're talking about whether two individuals should be treated equally, under the equal protection clause of the Constitution... It isn't judicial activism for the Supreme Court to recognize an associational right, a liberty right, and a privacy right for two people who love each other to be married."

David Boies explained why he wants the federal courts to strike down legislation that California citizens democratically enacted via ballot initiative:

"If you didn't tell the majority of 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... There are certain rights there are so fundamental that the Constitution guarantees them to every citizen regardless of what a temporary majority may or may not vote for... Nobody's asking to create a new constitutional right here. This is a constitutional right that has already been well recognized by the Supreme Court... What the Constitution says is that every citizen gets equal protection of the laws. It doesn't just say heterosexuals."

In a statement prepared in the run-up to the 2008 vote, supporters of Proposition 8 argued against judicial determination of what constitutes marriage and said the legislation was not about attacking gays and lesbians or denying anyone rights:

"Proposition 8 is about traditional marriage; it is not an attack on gay relationships. Under California law gay and lesbian domestic partnerships are treated equally; they already have the same rights as married couples. Proposition 8 does not change that. What Proposition 8 does is restore the meaning of marriage to what human history has understood it to be and over 61% of California voters approved just a few years ago... It overturns the flawed legal reasoning of four judges in San Francisco who wrongly disregarded the people's vote, and ensures that gay marriage can be legalized only through a vote of the people... Prop. 8 will NOT take away any other rights or benefits of gay couples. Gays and lesbians have the right to live the lifestyle they choose, but they do not have the right to redefine marriage for everyone else. Proposition 8 respects the rights of gays while still reaffirming traditional marriage."

What do you think?

  • Do you support same-sex marriage? Why or why not?

  • In your view, would it be appropriate for a federal court to strike down a constitutional amendment enacted by a popular vote?


  • February 19, 2010

    Justice For Sale?

    (Photo by Robin Holland)

    Citizens and experts alike have been hotly debating last month's Supreme Court decision in the Citizens United case, which struck down laws limiting political spending by corporations and unions. In one recent poll, 80% of respondents suggested that they opposed the Court's ruling.

    While many have discussed the decision's potential impact on presidential and congressional elections, few have addressed how increased political spending could change the dynamic of judicial elections in the 39 states where at least some judges must face voters.

    Bill Moyers began the JOURNAL this week revisiting his 1999 FRONTLINE report "Justice for Sale" about how judges running for state court positions must often rely on special interests to fund and support their election campaigns. Critics, including Stephen Breyer of the U.S. Supreme Court, have suggested that such donations and other spending on judicial campaigns undermine the stature and independence of the judiciary. Sitting down with Bill Moyers in 1999, Justice Breyer explained his concerns about judicial independence:

    "Independence doesn't mean you decide the way you want. Independence means you decide according to the law and the facts. Law and the facts do not include deciding according to campaign contributions, and if that's what people think, that threatens the institution of the judiciary. To threaten the institution is to threaten fair administration of justice and protection of liberty."

    Bob Gammage, a former Justice on Texas' Supreme Court, said that spending on judicial elections comes down to special interests trying to sway the courts to their point of view:

    "People don't go pouring money into campaigns because they want fair and impartial treatment. They pump money into campaigns because they want things to go their way. Why else would the contributors be there? They have interests to pursue. They have agendas to pursue. In some cases, they have ideologies to pursue. They're not just bland, benign philosophies. They want results."

    In this week's show, CNN legal analyst Jeffrey Toobin told Bill Moyers that he is concerned that last month's controversial U.S. Supreme Court decision in the Citizens United case could increase the influence of special interests in judicial elections. Toobin said:

    "I think judicial elections are really the untold story of Citizens United, the untold implication. When the decision happened, a lot of people said 'OK, this means that Exxon will spend millions of dollars to defeat Barack Obama when he runs for reelection.' See, I don't think there's any chance of that at all. That's too high-profile - there's too much money available from other sources in a presidential race. But judicial elections are really a national scandal that few people really know about, because corporations in particular, and labor unions to a lesser extent, have such tremendous interest in who's on state Supreme Courts and even lower state courts that that's where they're going to put their money and their energy because they'll get better bang for their buck there."

    What do you think?

  • Do you believe your state courts are beholden to special interests? Why or why not?

  • In your view, will the Citizens United decision increase the influence of deep-pocketed special interests over state courts nationwide?

  • How are you and your community working to make government serve the public good and not just those with vast sums to spend?


  • Bill Moyers & Michael Winship: What Are We Bid For American Justice?

    That famous definition of a cynic as someone who knows the price of everything and the value of nothing has come to define this present moment of American politics.

    No wonder people have lost faith in politicians, parties and in our leadership. The power of money drives cynicism deep into the heart of every level of government. Everything – and everyone – comes with a price tag attached: from a seat at the table in the White House to a seat in Congress to the fate of health care reform, our environment and efforts to restrain Wall Street’s greed and prevent another financial catastrophe.

    Our government is not broken; it’s been bought out from under us, and on the right and the left and smack across the vast middle more and more Americans doubt representative democracy can survive the corruption of money.

    Last month, the Supreme Court carried cynicism to new heights with its decision in the Citizens United case. Spun from a legal dispute over the airing on a pay-per-view channel of a right-wing documentary attacking Hillary Clinton during the 2008 presidential primaries, the decision could have been made very narrowly. Instead, the conservative majority of five judges issued a sweeping opinion that greatly expands corporate power over our politics.

    Continue reading "Bill Moyers & Michael Winship: What Are We Bid For American Justice?" »


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