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Bench Memos

NRO’s home for judicial news and analysis.

Re: David Boies, A Man in Search of an Argument



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In an excellent letter in today’s Wall Street Journal, Charles J. Cooper—who, as I’ve noted, is valiantly defending California’s Proposition 8 against the despicable attack being waged by Ted Olson and David Boies—responds to the risible WSJ op-ed by Boies that Matt Franck recently dissected on Bench Memos:

Mr. Boies’s divisive rhetoric defames as bigoted not only the majority of Californians, but also the overwhelming majority of Americans—decent people from all walks of life, all political parties, and all races and creeds. Indeed, President Barack Obama supports giving gay couples the legal protections of domestic partnerships, but opposes same-sex marriage—precisely what California has done. Mr. Boies denounces all those who hold this view as gay-bashers. Surely he does not really believe this.

The traditional definition of marriage has nothing in common with antimiscegenation laws. From their inception, those laws were designed to serve the hateful causes of white supremacy and racial oppression; they were rooted in bigotry and furthered no legitimate governmental interests whatsoever. The overriding purpose of marriage, in nearly every civilization throughout history, has always been to channel potentially procreative sexual relationships into stable and binding unions that will provide for the care and upbringing of the offspring of those unions.

It is an undeniable biological fact that only opposite sex relationships naturally, and often inadvertently, produce children. Accordingly, traditional opposite-sex marriages further the fundamental purpose of marriage in a way that same-sex relationships do not. This purpose of marriage goes to the very survival of civilization; it has nothing to do with literal or figurative gay-bashing.

The Supreme Court cases recognizing the fundamental right to marry contain not a scrap of support for redefining marriage to include same-sex unions. On the contrary, these cases have uniformly recognized the connection between the right to marry and society’s existential interest in creating, nurturing and educating the next generation. The court specifically rejected Mr. Boies’s constitutional arguments many years ago, and it specifically said that its recent decision invalidating criminal antisodomy laws did not imply a right to same-sex marriage. The people of each state are free to redefine marriage to include same-sex unions, and a handful of states have begun experiments of this kind. Innovation and change are the hallmarks of a democratic and pluralistic society. Maybe these experiments will succeed and be imitated by other states. Or maybe not. But if the federal courts yield to Mr. Boies’s demands, that will be the end of the debate, and there will be no going back—not for California nor for any other state.
A majority of California’s voters, with malice toward none, have decided not to try this experiment, at least for now. Nothing in our Constitution gives the courts the extraordinary and dangerous power to force it upon them.

Tags: Whelan


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