Bench Memos

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David Boies, A Man in Search of an Argument


In today’s Wall Street Journal, David Boies makes his case for overturning California’s Proposition 8 (protecting marriage as it has existed throughout history) as contrary to the federal Constitution.  If this represents the best he can do, he had better try again, for his argument is laughably bad.  (Of course, it may still be good enough for Justice Anthony Kennedy–probably Boies’ intended audience, come to think of it.)

Here I’ll stick just to 1) the demonstrably false things Boies says, and 2) his preposterous straw-man arguments.  There may be more examples in both these groups than I can document here, but these strike me as the most notable, taking them in the order in which they appear.

Demonstrable falsehood #1: “The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it.”  In fact, not once has the Court ever held this, or anything like it.  Boies’ evidence consists of a 1978 case overturning a Wisconsin law that kept “child-support scofflaws” from marrying (or remarrying), and a 1987 case overturning “a Missouri law preventing imprisoned felons from marrying.”  He might have mentioned Loving v. Virginia, the 1967 invalidation of anti-miscegenation laws, to which he alluded earlier.  But none of these cases–and no other that he might have named–posited a fundamental “right to marry the person you love,” not even the Loving case.  Boies’ two examples upheld a right to marry, period–subject to all the usual restrictions and regulations regarding bigamy, consanguinity, the age of consent, and so on–in cases in which there was a flat prohibition on certain persons marrying anyone.  And the Loving case overturned the racist laws of those states that prevented men and women of different races from marrying each other.  It was vital to the Court that decided Loving that such couples were capable of marrying each other, because they were of an age to do so, not too closely related, neither of them presently married to another–and they were of opposite sexes.  Nothing about their racial differences made for a relevant consideration between a man and a woman naturally capable of marrying.

Straw man #1: “The occasional suggestion that marriages between people of different sexes may somehow be threatened by marriages of people of the same sex does not withstand discussion.”  (Later he asserts that various other countries have “embraced gay and lesbian marriage without any noticeable effect.”)  Boies proceeds to toss out arguments no one has ever made, about couples contemplating marriage giving up on the idea when they see gay couples getting married, or couples divorcing for the same reason, and reaches outright hallucination when he imagines that anyone thinks “depriving lesbians of the right to marry each other could force them into marrying someone they do not love but who happens to be of the opposite sex.”  Boies has apparently never been in the room for a serious discussion of these matters, so let me just point him to the important articles Stanley Kurtz published several years ago in The Weekly Standard, and here at NRO, demonstrating the strong correlation between the adoption of same-sex marriage in Scandinavia, the Netherlands, and elsewhere, and the decline of marriage as an institution.  It’s a bit more subtle than “gee, Gloria, I see that Mike and Tim got married, so I want that engagement ring back.”  But it has everything to do with same-sex marriage’s necessary severing of the link between marriage and procreation.  I suppose Boies has noticed that link, but maybe it hasn’t dawned on him.

Straw man #2: “[T]here is no longer any credible contention that depriving gays and lesbians of basic rights will cause them to change their sexual orientation.”  Aside from begging the question of what the “basic rights” of “gays and lesbians” are–the precise point in controversy–Boies again produces an argument no one has ever made.  Whatever one’s views on the cause or causes of homosexuality (and it might be noted in passing that no one ever inquires what the cause of heterosexuality is), no one has ever been stupid enough to think that “gays” could be changed into “straights” by denying them the opportunity to marry each other.  Or did Boies mean to suggest laws against sodomy were once thought to change their “orientation”?  No one has ever thought that, either.  As for Boies, he does believe some things for which he produces neither evidence nor argument but only assertion, such as this: “the sexual orientation of gays and lesbians is as much a God-given characteristic as the color of their skin or the sexual orientation of their straight brothers and sisters.”  Might be true, but many serious and sensible people doubt it.  (See Christopher Wolfe, ed., Homosexuality and American Public Life [1999], and Same-Sex Matters [2000].)  In any event, the question of changing sexual orientation is quite irrelevant to the issue of who is entitled to marry.

Demonstrable falsehood #2:  “There are those who sincerely believe that homosexuality is inconsistent with their religion–and the First Amendment guarantees their freedom of belief.  However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law.”  Again Boies begs the question, this time about the due process and equal protection clauses.  It is incumbent on him to show why restricting marriage to one man and one woman is a violation of those clauses.  As for the First Amendment, that is where his falsehood lies.  I guess he means to suggest that the establishment clause “precludes the enshrinement” of anyone’s “religious-based disapproval” of same-sex unions.  But as I said in a discussion of the recent Iowa marriage ruling:

Because of the diversity of religious commitments in our society—and because it violates our constitutional morality, and no little part of our dominant religious morality, for anyone to be coerced in matters of faith and practice—we must express our moral opinions to one another in a shared language of reasons and arguments. This does not and cannot mean that the connection of our moral arguments to our religious sentiments is severed when we meet in the public square. But when all the arguments have been aired out, the moral view that prevails at the ballot box and in the legislative halls is entitled to have its way in public policy, barring any explicit constitutional obstacles to its enactment. The “separation of church and state” is not one of those obstacles. If it were, no law with any moral purpose that happened to coincide with the view of any religious community could ever be upheld.

All of this escapes the Iowa justices, whose view seems to be that if a moral argument finds support in any religious commitment, then the promulgation of that argument in law is a violation of the principle of religious disestablishment. This is logically fallacious, historically illiterate, and politically brutish.

On the other hand, Boies passes merrily by the very serious argument that state recognition of same-sex unions as marriages will lead to official infringement of the religious liberty of many Americans.  Already the state of Massachusetts has driven the Catholic Church out of the adoption business, because the Church’s agencies decline to place children with same-sex couples.  This and other real threats to freedom do not merit Boies’ notice.

Boies concludes his article thus: “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.”

We have known since Bush v. Gore that Boies is a man with considerable nerve.  But “marriage is between a man and a woman” is not a “tautological assertion.”  It is a statement of fact about a central institution in our civilization–a fact historical, natural, and moral, backed up by many centuries of wisdom about men and women, children and families, law and culture.  It is Boies who has produced no constitutional analysis whatsoever in his Journal article, and who has only a bumper sticker bleating about “justice” without ever giving a serious account of what justice calls us to do.  Like the typical bumper sticker, Boies’ “justice” is an entirely sentimental matter, the op-ed equivalent of “Mean People Suck.”

Justice requires that the lawsuit brought by David Boies and Theodore Olson be laughed out of court.


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