The U.S. Supreme Court should uphold a federal judge’s ruling that gay and lesbian couples have an equal right to marriage, the nation’s former top courtroom lawyer said.
Theodore Olson, who was solicitor general under President George W. Bush and one of the lawyers who argued on behalf of same-sex marriage, said he was confident the high court will uphold U.S. District Judge Vaughn Walker’s decision to strike down a California referendum passed in 2008 that defined marriage as only between a man and a woman.
“Since 1888, the United States Supreme Court has 14 times decided and articulated that the right to marriage is a fundamental right,” Olson said on the “Fox News Sunday” program yesterday. “We’re not talking about a new right here.”
Walker on Aug. 4 threw out Proposition 8, a state constitutional amendment passed by 52 percent of California voters, saying the measure violates the federal constitution and the equal protection clause of the 14th Amendment.
Olson, now a lawyer with Gibson Dunn in Washington, joined with David Boies, his adversary in the Supreme Court case that determined Bush won the 2000 presidential election, in the case.
He said Walker’s ruling was no different than Supreme Court decisions that struck down laws prohibiting interracial marriage and rejected claims Walker was an “activist judge.”
“We do not permit discrimination, inequality,” Olson said. “That’s why we have a 14th Amendment that guarantees equal rights to all citizens. It’s not judicial activism when judges do what the Constitution requires them to do, and they follow the precedent of previous decisions of the Supreme Court.”
Tony Perkins, head of the Family Research Council, who supported Proposition 8, called it a “flawed decision.”
The decision is a case of one judge “who says he knows better than not only 7 million voters in the state of California, but voters in 30 states across the nation that have passed marriage amendments,” Perkins said on CBS’s “Face the Nation.”
Perkins said the judge ignored “social empirical data” that supported the amendment. He said laws over the past 40 years, including no-fault divorce, that “devalued marriage” have “truly impacted children and impacted the institution of marriage.”
“The judge, in his ruling, actually just ignored all of that,” Perkins said.
Boies said opponents of same-sex marriage couldn’t back up their public statements that gay marriage would harm children while testifying under oath.
“There simply wasn’t any evidence,” Boies said on the “Face the Nation” program. “There weren’t any of those studies. There weren’t any empirical studies. That’s just made up. That’s junk science. And it’s easy to say that on television. But a witness stand is a lonely place to lie.”
Boies said the case “put fear and prejudice on trial and fear and prejudice lost.”
Perkins said there was no correlation between the issue of same-sex marriage and civil rights. Rulings on marriage, he said “dealt with traditional marriage, marriage between a man and a woman.”
“So this is far from over,” he said. “And we hope that sanity will reign when it does make its way to the United States Supreme Court.”
Will of the People
Virginia Governor Bob McDonnell, a Republican, said the judge’s ruling won’t have an immediate impact on Virginia, where voters have also come out against gay marriage.
“I think the court is wrong to overturn the will of the people,” he said on CNN’s “State of the Union” program. “I’m hoping that, ultimately, if it gets to the Supreme Court, they will agree.”
Michigan Governor Jennifer Granholm, a Democrat, said she opposed a vote against same-sex marriage that passed in her state in 2004 and called Walker “courageous.”
“The judicial branch is not supposed to be a branch that simply ratifies the will of the majority if, in fact, it violates the constitution,” she said on CNN.
The case is Perry v. Schwarzenegger, 3:09-cv-02292, U.S. District Court, Northern District of California (San Francisco).