The U.S. Supreme Court and the Right to Marry

Today's Wall Street Journal has a great op-ed from lawyer David Boies, one of the lawyers behind the federal lawsuit challenging California's ban on same-sex marriage (known in many circles simply by the infamous Proposition 8).  It is well worth the read, as you'll see from some snippets below.

In filing the federal case, Boies teamed up with Ted Olson, a former Solicitor General and the man who represented George W. Bush in the 2000 Supreme Court case Bush v. Gore. Boies, for his part in all of this history, represented Al Gore in that case, making this a true odd couple in teaming up to litigate the right to same-sex marriage.

But having these two guys, both from opposites ends of the political spectrum, shows that same-sex marriage is not a conservative vs. liberal issue.  And that's a point that David Boies stresses very strongly in his op-ed today in the WSJ.  Check it out:

Recently, Ted Olson and I brought a lawsuit asking the courts to now declare unconstitutional California's Proposition 8 limitation of marriage to people of the opposite sex. We acted together because of our mutual commitment to the importance of this cause, and to emphasize that this is not a Republican or Democratic issue, not a liberal or conservative issue, but an issue of enforcing our Constitution's guarantee of equal protection and due process to all citizens.

And just what might the U.S. Constitution have to say about the right to marry?  Boies explains how the Supreme Court has interpreted marriage laws in the past.  If the U.S. Supreme Court follows its precedent, then it should just be a matter of time before marriage equality is back on the books in California, if not throughout the entire country.  Here's Boies again:

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it....

Countries as Catholic as Spain, as different as Sweden and South Africa, and as near as Canada have embraced gay and lesbian marriage without any noticeable effect -- except the increase in human happiness and social stability that comes from permitting people to marry for love. Several states -- including Connecticut, Iowa, Maine, Massachusetts, New Hampshire and Vermont -- have individually repealed their bans on same-sex marriage as inconsistent with a decent respect for human rights and a rational view of the communal value of marriage for all individuals. But basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

Wow, that's good stuff.  Boies also points out that the Supreme Court has overturned anti-marriage laws in the past, like the kind that existed in Missouri that prevented felons from marrying, or the kind that existed in Wisconsin that prevented child support scofflaws from marrying.  Boies rightly says that those like the National Organization for Marriage or Kenneth Starr or others who argue on behalf of ballot initiatives like Proposition 8 really have no legal analysis behind their argument, other than the religious belief that marriage should be between a man and a woman.  But as Boies concludes, that's not an adequate enough legal argument:

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.