Bench Memos

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Keith Olbermann’s Anti-Prop 8 Brief?


Here’s the third sentence of the brief that plaintiffs/appellees in the anti-Prop 8 case in California (Perry v. Schwarzenegger) filed two days ago in the Ninth Circuit appeal of Judge Vaughn Walker’s ruling:

This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

This is the sort of absurd demagogic hyperbole that I’d expect from a Keith Olbermann rant, not something that I’d expect competent lawyers complying with minimal standards of professional responsibility to sign their names to.

If I must belabor what should be obvious: I fully acknowledge the passion of gay-rights activists who believe that redefining marriage to encompass same-sex couples is critical to their vision of equality, and I of course recognize that the claim that the Constitution compels that redefinition is at the heart of plaintiffs’ anti-Prop 8 case. But however that claim is decided, it is uncontested, and incontestable, that gay and lesbian Americans “are ‘persons’ under the Fourteenth Amendment” and that they are fully entitled to protection under it. The question in the case is simply whether the rights afforded under the Fourteenth Amendment include the novel constitutional claim that plaintiffs are advancing, not whether gay and lesbian Americans are “persons” for general purposes of the Fourteenth Amendment.

In case you were wondering: Yes, alas, the brief was submitted by Ted Olson and David Boies and bears Olson’s signature.


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