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David Boies WSJ Op-Ed on the Challenge to Prop 8

July 19, 2009

The Wall Street Journal has an op-ed in Monday’s paper from David Boies, the Democratic half of the bipartisan team challenging Prop 8.  You’ll recall that Boies and his partner on this case, Ted Olson, were the two who argued Bush v. Gore.  It’s a well written and far from earth shattering piece.  We’ve heard all these arguments before, but is certainly reaching a necessary audience in the readers of the Wall Street Journal–conservatives who are most likely voting based on their wallets, not the words of their evangelical ministers.

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. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

On the argument that same sex marriage undermines “traditional marriage:”

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.

On religion:

There are those who sincerely believe that homosexuality is inconsistent with their religion — and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.

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