Bench Memos

NRO’s home for judicial news and analysis.

Re: Keith Olbermann’s Anti-Prop 8 Brief?


The conclusion to Ted Olson’s and David Boies’s Ninth Circuit brief in the anti-Prop 8 case is even more irresponsibly demagogic than their introduction. And there’s a lot in between the introduction and the conclusion that isn’t much better. (That brief should be available online at this Ninth Circuit site at some point, but for some reason it’s not up yet.) Here is the opening paragraph of their conclusion (emphasis in original):

Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay. A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay. Incidents such as these are all too familiar to our society. And it is too plain for argument that discrimination written into our constitutional charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic.

So it’s supposedly “too plain for argument” that these horrific incidents flow from the perpetuation of traditional marriage? What ludicrous nonsense.

I certainly don’t deny that gays and lesbians may experience intense anguish as a result of various causes, and advocates of same-sex marriage are entitled to make their best case that one positive result of adoption of same-sex marriage would be to lessen that anguish. But to contend that the matter is “too plain for argument” and that it compels invention of a federal constitutional right to same-sex marriage is absurd.

Maggie Gallagher responded to a similar contention in San Francisco’s brief in her New York Post essay, “Don’t blame me for gay teen suicides”:

Forced sex, childhood sexual abuse, dating violence, early unwed pregnancy, substance abuse — could these be a more important factor in the increased suicide risk of LGBT high schoolers than anything people like me ever said?

The deeper you look, the more you see kids who are generally unprotected in horrifying ways that make it hard to believe — if you are really focusing on these kids’ well-being — that gay marriage is the answer.

And that’s exactly what the Youth Risk Behavior data also shows: In 2001, gay teens in Massachussetts were almost four times more likely to have attempted suicide (31 percent versus 8 percent). In 2007 — after four years of legalized gay marriage in that state — gay teens were still about four times more likely to attempt suicide than non-gay teens (29 percent versus 6 percent).

I can’t refrain from noting that the statistical comparison in Gallagher’s last paragraph is strikingly similar to the comparison that Judge Vaughn Walker relied on in maintaining that “the evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” So if one were to follow the Walker model of rank abuse of social-science data, one would claim that “the evidence shows beyond debate that allowing same-sex couples to marry does not reduce the relative incidence of attempted suicide by gay teens.” I’m certainly not going to claim that the matter is beyond debate. But it’s all the more remarkable that Olson and Boies can avail themselves of Walker’s absurd contention while also maintaining that it is “too plain for argument” that the perpetuation of traditional marriage causes suicides by gay teens.


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