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The Dangerous Olsen and Boies Precedent

January 11th, 2010

By Jennifer Roback Morse

Two high-profile lawyers are challenging California’s constitutional ban on gay marriage.

California’s high-profile federal lawsuit against Proposition 8, which begins in court on January 11, appears to be about creating a federal case for same sex marriage. But in fact, much more is at stake. Lurking in the shadows of this case is a breathtaking expansion of judicial interference with perfectly valid elections. Whatever your views about Proposition 8, we surely should be able to agree that special interest groups can’t go into court to overturn elections they don’t like.

Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.

The Ninth Circuit Court issued a preliminary order against the enforcement of these outrageous demands. While this is a welcome development, it is only a temporary reprieve for the integrity of the electoral process. The Ninth Circuit should completely overrule the trial court.

I happened to know about this because I received a subpoena from Boies’ office. I was a consultant to the Prop 8 campaign. I have not the slightest concern that anyone will find any evidence of hatred hidden in my correspondence. My views are all over the internet. It is the pettiness of Olsen and Boies I find revolting. Out of over US$40 million spent by the Yes on 8 campaign, I was paid a grand total of $10,000. If they can harass little old me, nobody is safe.

But more importantly, people’s motives are completely irrelevant to the validity of an election. Think about Obama’s election. Some people voted for him because, after careful study, they agreed with all of his policy ideas. Others held their noses and voted for him, even though he is not nearly far enough to the left for their liking. Some wanted to see a black man as president. Some no doubt voted for him because they like his wife, or because Oprah told them to. Amongst the millions of people who voted for Obama, were surely some who hate white people and others who have a visceral, irrational hatred of Republicans.

None of this has the slightest relevance to the legality of Obama’s election. The motives of the voters, no matter how venal or exalted, no matter how petty or profound, are completely immaterial. Obama won in a legitimate election, with exactly the same percentage of the vote that Proposition 8 had: 52% to 48%. No court in the land should have the authority to look over the shoulders of campaign managers and voters to see if their motives pass some ideological litmus test.

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  1. Harold O’Hayre
    January 12th, 2010 at 17:16 | #1

    What about the anti-Christian and anti-Mormon bias of the opponents of Proposition 8?

  2. Betsy
    January 12th, 2010 at 17:19 | #2

    I agree. They definitely showed some hatred on their end. Now THAT’s very publicly well-documented.

  3. Teri
    January 13th, 2010 at 09:48 | #3

    You know, I am sick and tired of “the far left” thinking it is ok to silence Judeo-Christian views, but yet we have to be tolerant of their views? What kind of double standard is that? Furthermore, couldn’t we look at THEIR motives on how THEY vote? Doesn’t it all amount to the same thing if the “far right” wanted to do that to them?

  4. Mae
    January 16th, 2010 at 21:18 | #4

    This is positively astounding to learn. Talk about the thought police in full effect. All I can say is that Christians and conservatives need to really stand up and fight for our lives lest we find ourselves been driven underground. We [Christians/Conservatives] have the strength in numbers and we ought to start using it. You cannot fight radicalism with luke warm tenacity; you have to fight it with the same amount of fire and passion that gets thrown at you.

  5. Aaron
    January 17th, 2010 at 01:16 | #5

    It is a dangerous leap from societal context and the true nature of the major proponents of the Yes on 8 campaign to proclaim that there was no “anti-gay bias.” Of course there was. Just look at how ProtectMarriage targetted churches for support. When gay marriage is biblically an abomination, and devout church-goers look to the Bible as a source of beliefs, is it really a radical departure from rational thought to view religious proponents of Prop 8 as “anti-gay”?

    However, as the author put it, motives don’t matter in elections. But, does that really make elections just?

    It is the duty of the courts to protect minorities from tyranny of the majority. It has been well-known since the foundation of democracy that the system is not without flaws, and its defenders cite its departure from tyranny of an individual over his/her subjects. But democracy is far too glorified in that respect, which, I fear, has led to the author’s dismissive tone towards the idea that what is right is more important and more just than what is popular.

    All who are aware of demoratic tyranny have an obligation to counter it. This includes the courts.

    As to some of my fellow bloggers, who express another side of the Yes on 8 argument. I see only two possibilities as to the root of the belief that No on 8 is a repression of Judeo-Christian theology.

    One is wrong and the other is arrogant and riddled with logical fallacies.

    Many believe that priests, pastors, etc. will be forced to wed gay couples. This is wrong. Leaders of the gay movement agree that this is not their goal, and expecting such acceptance of gay marriage from many organized religions would be unfair.

    The other possibility for the root of the perceived stifling of religious values must come from the belief that it is just for theology to dictate what is right and wrong in society. This is arrogant. It asserts that it is fair for Judeo-Christian views to dictate the stripping of rights from gays, and any attempt at keeping this stripping of rights from happening is an unfair imposition upon the religious community. This is a laughably hypocritical argument, as it is ignorant of the fact that the theological assertions impose upon gays.

    Theological belief does not give a person the right to dictate what is right and wrong, or at least, it doesn’t give him/her the right to assert that dictation upon others.

    And as to the belief that pro-gay marriage activists are anti-religion, it can only be asserted in response that religion threw the first punch in that department, with thousands of years of texts aimed at the destruction of the homosexual lifestyle. Gays are forced to create their own religious sects, because they are not accepted by major religions.

    However, I have seen no evidence of such “anti-religious” bias in the first place. The gay community, as is common among minorities, is very accepting of others’ beliefs. And, at least, the gay community has no widely accepted and intensely followed texts that spit upon the religious lifestyle.

  6. January 19th, 2010 at 17:13 | #6

    Many believe that priests, pastors, etc. will be forced to wed gay couples. This is wrong. Leaders of the gay movement agree that this is not their goal, and expecting such acceptance of gay marriage from many organized religions would be unfair.
    Aaron: this is not the issue. I think everyone knows that clergy are not going to be forced to perform ceremonies. The question is what other aspects of a religous organization’s activities will be impacted by same sex marriage. Wedding photographers and owners of reception halls have been forced to accomodate same sex ceremonies they don’t agree with. Adoption agencies and infertility doctors have been forced to provide services to people they don’t think they should serve, even though they have refered people to alternative service providers. It is naive to think that religious people have nothing to worry about. Legal experts from across the poltiical spectrum have agreed that ssm will have a negative impact on religious organizations and individuals.

  7. January 21st, 2010 at 02:04 | #7

    With all due respect Jennifer, any private business can discriminate and not accommodate a customer. Now matter how much you frame your argument, when you do not accommodate someone it’s called discrimination. It doesn’t make a difference if you don’t like tall people, fat people, Jewish people, yellow people, liberals, pro-choice voters, single women or bald men. If you own a business and refuse them services, you are discriminating. By doing this, you are causing a severe negative impact on your place of business and the businesses around you.

    Several specific Federal laws like the Civil Rights Act demands that a private business serve everyone in the public. Businesses for the public are considered a restaurant, movie theater, bowling alley or dance hall. Those businesses, although private cannot discriminate based on religion, race, gender, national origin or age. Other Federal laws like the Americans with Disabilities or ADA also demand private business accommodate people with disabilities. These are laws defined to protect the public against discrimination.

    There are no laws to protect specifically couples in regarding to business accommodation. So a dance hall, or photographer can decline any potential client so long as it’s not based on something covered in those Federal laws I quoted above. Now in certain States, there are very strong anti-discrimination laws that include sexual-orientation in respect to employment, public accommodation and housing. So in those States, if a private business refuses a couple based on their sexual orientation they could face a violation. However, these laws do not specifically protect same-sex couples; rather, they protect all homosexuals. Those laws exists already regardless of marriage equality.

    The bottom line, if you are a wedding photographer or owner of a reception hall, you better get a clue and realize that same-sex couples might come to spend money at your place of business. If you are Christian wedding florist but you have a Hindu couple approach you to do their wedding, you cannot escort them out the door based on their religion or culture. This might sound pretty harsh but it is a reality of society and doing business in a public arena. I say a solution can to become a photographer who only works on referrals privately. Basically you would take referrals from existing Christians and you probably will never face getting a Hindu or Atheist couple before your place of business. Again, I am not sure why a Christian Photographer must wear their religion on their sleeve when taking a client. If we all acted like this at our place of business tomorrow, would you ban working with Jews, Muslims, Atheists, and Pagans?

    You cannot work in a public arena and expect to discriminate, period. Turn your business into a members only private club if that is what you want to do.

  8. January 25th, 2010 at 15:06 | #8

    Thanks for your comments. You have two arguments going at the same time. 1. A person who discriminates is likely being irrational, because they are losing business for themselves. As it happens, I agree with this argument. This is an argument for not allowing government intervention, since private market forces are likely to place limits on how much of this kind of discrimination actually takes place. The Christian who refuses to film a lesbian commitment ceremony will lose business to the company down the street that doesn’t care one way or the other. This is a very powerful argument, that would in fact represent a pretty stable compromise. But it is an argument against what I take your position to be. 2. Your second argument seems to be that sexual orientation is like race in every morally relevant way. Therefore, sexual orientation ought to be treated like race in every legally relevant way. The first point is precisely the point that is up for debate: many people, including the vast majority of African Americans, do not share your view that sexual orientation is morally equivalent to race. Hence, your second point, that sexual orientation should be legally equivalent to race is also contested.
    In short, your post assumes what needs to be proven.

  9. Eddie M
    January 25th, 2010 at 15:35 | #9

    I agree with you that it is a dangerous precedent to have the motives of elections scrutinized. But that precedent has already been set. “Hate crimes, ” while laudably trying to protect some threatened memberrs of our population, are ultimately bad for a democracy. Everey crime against another human being is a form of hatred, whether explicit or not, because one trounces the rights of others. Is it worse to murder out of hatred rather than out of passion? Morally yes. Legally, no. Legally, premeditation a counts. Motive counts, but not what the motive is. Ultimately Whether there wass a motive can be dteremined, what the motive was cannot be determined beyond a reasonable doubt. It is two short steps from this to the thought police. A dangerous step indeed.

  10. Karen Grube
    March 31st, 2010 at 17:40 | #10

    Did you know that the RNC has hired Ted Olsen to represent them as far as the Supreme Court in a finance matter? How totally outrageous! What a slap in the face to those of us in California. Couldn’t they find somone better? What is their problem? Are they blind as to this guy’s lack of ethics and personal morality? And I only joined the RNC a few months back! I am totally disgusted that they would do this. I’m going to call them and tell them to fire Olsen. He’s certainly no one I’d want representing me. EVER! Honestly, this makes me really angry. I may resign if they don’t fire him quickly. Really.

  11. Morpheus
    July 5th, 2010 at 03:19 | #11

    So basically, you believe that there is no limit to what the raw electorate can vote into reality, as long as it is the majority in favor…right?

    Please let your imagination run wild with how our nation would be if the public’s opinion on matters was the last word on matters of social changes.

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