Ted Olsen and David Boies were just on the Rachel Madow Show. They are jointly defending gay marriage in opposition to California's Prop 8 vote last November. It's an amazing sight because Olsen was Ronald Reagan's Solictor General and also G.W. Bush's lawyer in Bush v Gore in 2000 (Boise represented Gore!) They are prepeared to take their fight the whole way to the Supreme Court. It's stunning that one of the foremost conservatist lawyers of all time is willing to take on this fight.

Unlike some gay rights leaders, I think Boies and Olsen's effort will be a worthwhile one, win or lose. Even a negative decision could ultimately have the same status as Plessy v. Ferguson in the history books. And things can develop a lot faster in the internet age.

Well by the time this case reaches the SCOTUS it will hopefully have a different make up. Ted Olsen may end up being the "factor" that allows a Clarence Thomas or John Roberts to uphold a favorable ruling.

The stakes are high, this is not just a marriage case, it's an equal rights case and will have repercussions across the spectrum of civil rights for our community.

Article on Boises and Olson in the New Yorker: A Risky Proposal

Sorry to say, but it won't work. We are not at the same stage that things were at when the SCOTUS struck down laws prohibiting interracial marriage, nor is there currrently a national uproar regarding gay discrimination like there was in the 60's regarding racial discrimination. In fact, every state that has held a popular vote has declined to confer the word "marriage" on gay unions. The sentiment of fighting the good fight is noble, but, from a practical perspective, the lawsuit is a mistake and will make bad precedent if it gets to the SCOTUS.

I agree, but more so because I totally disagree with the federal district court even getting involved. Moreover, Judge Walker should be removed from the bench. His actions in this case have been contemptible. More than once he's already been spanked by SCOTUS.

Why? What's wrong with Walker?

An interesting article about Judge Walker:

http://www.queerty.com/is-the-prop-8-trial...2+%28Queerty%29

The very title of that article should result in his impeachment and removal from the bench if he's even slightly trying to do that. It is NOT the role of a judge, especially a federal judge, to involve his personal beliefs, ideas, or desires into any case in his/her courtroom. Add to that the fact that he tried more than once to get this case televised on youtube and turn it into his own version of the Scopes trial, and we have a federal judge run amuck.

This man is an embarrassment to the federal bench!

That's funny, I could say the same (especially the bolded part) about 4-5 justices on SCOTUS.

I always thought judges were supposed to think, analogize and see what precedent is most relevant. There is no connect the dots manual for them to use. Judgment (hence the term judge) is required.

It is necessary for judicial thought to progress with the times. Anyone who doesn't think that Scalia (or Roberts, or Thomas) goes into the majority of his cases with his mind made up is sorely mistaken.

For me the issue isn't whether judges have their own opinions, it's more how they arrive at that line of thinking. The "conservative" "fundamentalists" are misguided at best or liars at worst with hypocrite somewhere in the middle. It always seems that they want to uphold the "conservative" parts that suit their particular point of view and rationalize away the rest. It was never intended for our society to remain static and stuck in 1788. And funny, you never hear the "strict constructionists" rail against Dartmouth College v. Woodward, arguably the case that has had the single biggest effect on the country.

You never did see Scalia's 60 Minutes interview last April, did you? It was actually pretty enlightening. I'm sure you'd be surprised by the fact that he's NOT a "strict constructionist." For example, he would not vote to overturn Roe v. Wade and rule a preborn baby has a right to life; rather, he correctly would rule that nowhere at all is abortion covered in the Constitution and therefore is to be left up to the states. Regardless, it is not the place of judges to insert their personal views based on changing times. The Constitution IS static. Its words have changed only 27 times in 200 years via the amendment process.

One of my biggest complaints about our current administration (and the Bush and Clinton Administrations were not guiltless in this) is their increasing usurpation of powers and rights that belong to the states. The federal government is sticking its nose deeper and deeper into Americans' lives, totally gutting the 10th Amendment, and I'm sick of it; and frankly, I'm appalled by those who call themselves liberal, who scream for the government to stay out of our personal lives, are so quick to look the other way when it comes to getting involved in areas that conform to their leftist line of thinking. Hypocrisy on parade.

You cannot possibly believe that the Constitution is a fluid item designed to change with the times, because if you do, it is rendered impotent and meaningless. Why have one if its meaning can be changed by a judge's whims? If times and attitudes and mores change, then there's a way for the Constitution to be changed or "catch up," if you will, with the times, and that is via the amendment process.

Judge Walker has more than once been slapped down by higher courts, including a unanimous 9th Circuit Court of Appeals and SCOTUS. His actions as a federal judge are contemptible and unacceptable. He ought to be removed from the bench or in the least, removed from this case altogether.

Women should have the same right as men to decide what to do with their own bodies, just as they should have the right to vote.

Scalia's constitutional interpretations conform to his political views, not any strict construction.

A case in point: The states needed to be able to form militias and that was the reason for the prohibition against preventing individuals from keeping and bearing arms for that purpuse, yet he interprets that as a fundamental individual right that no state - or other policing authority - can gainsay, even when public safety is clearly threatened by it.

Even the national Army was formed to "assist" these militias which were considered the primal defenders of constitutional rights of the states.

And only Congress could finance them, and then only for two year periods. Only congress is suppose to declare war.

I don't think Scalia interprets anything in a manner that is not in conformance with his personal political view.

Wouldn't believe Scalia if his tongue was notarized as Judge Milian likes to say.

The 10th Amendment isn't a license for states to do as they wish. If it were we would have cars getting 100 mpg because CA would have mandated it years ago. More people would be covered by health insurance like Hawaii, but no SCOTUS struck that down. Many things would be different because states like CA, WA & OR would enact laws that effect commerce and control such a big part of the market that companies would have to follow suit or lose market share. It works both ways.

Not sure why you have such a hardon for this judge, but every time he rules and is overturned it is our Constitutional system at work. Federal judges shouldn't be subject to populist political whim, nor afraid of getting it wrong. If they believe their decision has legal validity then they should make that ruling. Knowing that there is a higher body that can review and overturn if necessary. Popularity of views shouldn't enter the equation.

We grow as a country when people push the limits and we have to examine where we are and whether we should stay there or adjust. Otherwise we'd be a slave nation with women as second class citizens and drink beer instead of water.

Even though the words of the Constitution do not change, they must be applied and interpreted in light of changing circumstances and new situations that were not conceived of at the time the document was written. Reasonable people differ on the meaning of abstract phrases such as "due process of law" and how such a guarantee protects citizens. Does it apply only to how law is carried out? Does it apply also to the process of how law is created, that is, to the legislative process? If you believe the former, then it seems you would have no problem with a state passing a law requiring all gays to be quaranteened, as long as the law is put into effect according to its terms. If you believe the latter, however, you would probably object to a state law requiring all gays to be quaranteened because the very "process" of state creating a law singling out a minority group for persecution is itself a violation of the Constitution. Our country would be an extraordinarily backward place and likely unable to function as a Republic if the Supreme Court shrank from every diffcult legal question simply because of the 10th Amendment.

Ironically, that means you have no right to freely express yourself on this blog. The federal government could shut it down tomorrow. After all, the Constitution does not guarantee the right to blog, or respond to another's blog comment. Of course, if you think the definition of the word "speech" should expand to include all modes of new media, which means your First Amendment rights are protected, you are undermining your own argument.

As for the current Prop 8 case, what I never see discussed is the likely impact of the current trial on all subsequent rulings. Because Walker decided to actually try the facts of the case, the anti-gay hatemongers have to defend their arguments in court, and they can't. The lead attorney for the defense already acknowledged, during a pretrial hearing, that he could not provide examples of how same-sex marriages harm breeder relationships. The defense has also pulled a number of their witnesses, under the bogus claim of "intimidation" (when they get a brick to the face for being anti-gay, then they can talk about intimidation), but a review of their depositions before the trial show that at least some of them actually bolstered the plaintiff's arguments.

Everyone discusses a likely SCOTUS ruling as if the Justices have already decided the case and we're just waiting for the formal decision. But it is pretty clear that the facts will not support the defenders of the anti-gay hate amendment, leading to a likely Walker ruling for the plaintiffs. That will be appealed to the Ninth Circuit and then to the SCOTUS. But just as with Brown v. Board of Education, when the SCOTUS was presented with new evidence and information that clearly showed the detrimental effects of segregated schools on students of color, the current trial will provide significant evidence that LGBT people are discriminated against, that our sexuality is immutable, and the only reason for anti-gay hate amendments is to show animus toward the LGBT community (which was ruled unConstitutional in Romer).

Now, I have no doubt that an inveterate homophobe like Scalia will rule against us - his appalling dissent in Lawrence v. Texas, in which he bravely stood up for the rights of "normal" people to avoid any contact with faggots and dykes in their daily lives, proves that. We will also likely lose Roberts and Alito, who are about as enlightened as their philosophical ancestor, Tony the schlub.

That leaves Kennedy and Thomas as a potential 5th vote, and I think we could potentially get both. Thomas is more likely to rule narrowly, but he has surprised me in the past. Both of these Justices, I believe, can be moved by the evidence, and the evidence (so far) seems to be going our way.

Maybe he will feel some guilt about his mistreatment of Anita Hill, but otherwise I would be surprised if Thomas doesn't slink along behind Scalia, in fear of the inevitable, and rabid, tongue-lashing Scalia delivers to anyone who dares to disagree with him.

Yeah, great memo today straight from the Mormon Church to keep quiet about their involvement in Prop 8. Given that they're not supposed to engage in politics perhaps there will be some criminal conspiracy. Geez I hope the IRS revokes their non-profit status. They deserve the "ACORN" treatment.

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