Olsen replied that the U. S. Supreme Court has ruled that marriage is a fundamental right -- and that the Constitution does not specifically mention interracial marriage either but the court eventually struck down laws that prohibited it because it was discriminatory.
Wallace pressed further about why the California people did not have the right to pass a law, as they did, in Proposition 8. Olsen countered that voters cannot deprive minority groups of their rights by majority rule. That is our system of government: majority rule along within constitutional protection for the basic rights of minorities.
Wallace then argued: why not let the legislative process work its way state by state, as with changes in abortion laws. It seems to be working well for same-sex marriage with five states having approved it, he said.
OLSON: Would you like Fox’s right to free press put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution. And the Supreme Court has repeatedly held that the denial of our citizens of the equal rights to equal access to justice under the law, is a violation of our fundamental rights. Yes, it’s encouraging that many states are moving towards equality on the basis of sexual orientation, and I’m very, very pleased about that. … We can’t wait for the voters to decide that that immeasurable harm, that is unconstitutional, must be eliminated.At the end of the interview, Wallace conceded that he had not been able to break Olsen's arguments, and he said, "And I gotta say, after your appearance today, I don’t understand how you ever lost a case in the supreme court, sir,”
We all owe Ted Olsen a huge thank you for going against the stereotype of the conservative lawyer and taking this on. It was his idea, and he enlisted his former adversary, liberal lawyer David Boies, to partner with him in the case. I think in the choice of these two attorneys and the luck of the draw in getting Judge Walker to hear the case, this is the best possible course of events . . . at least thus far.
Ralph
It occurs to me that getting a Gay Judge is actually a pretty interesting thing in and of itself. Does that mean he's 'biased' or that he's 'unbiased'? One can make a reasonable argument that he's more likely to be 'unbiased.'
ReplyDeleteAnd I hadn't realized that "the U. S. Supreme Court has ruled that marriage is a fundamental right." That seems to make Proposition 8 moot in and of itself.
You're doing a pretty good job of selling this decision's durability...
I wasn't sure about "marriage is a fundamental right" either when I suggested that could be the line of argument the conservative SCOTUS justices might take. But Ted Olsen himself said it, and I took it from his transcript.
ReplyDeleteI agree about who is the biased one? If your argument is that the tradition itself is biased, then you could not expect to get a fair hearing from "one of them" that the bias favors.
Of course, I also think it's possible to be either gay or straight and not be so influenced by your own orientation. Plenty of straight people support gay marriage.