Lawyers from opposing sides who brought Bush v. Gore to the Supreme Court are working together on Perry v. Schwarzenegger, a U.S. District Court case challenging the constitutionality of Proposition 8. (Prop 8, you’ll recall, was a California-based definition-of-marriage [one man, one woman] initiative that won narrowly and is now back before the bench.)
Ted Olson was Solicitor General in the Bush administration, and a man with such burnished conservative credentials that Robert Novak called him “highly esteemed.” David Boies has bona fides of his own, having repped Al Gore in the nation’s highest court for one, and, for another, having won one of the most eminent first-amendment protection awards (the prize named after William Brennan). The two have gathered to help frame the illegality of Proposition 8’s constitutional language.
As they recently told Bill Moyers, working to defeat Prop 8 in California (on a case no doubt destined for the Supreme Court) is something of a no-brainer.
Olson:
[W]e’re hurting [gays and lesbians] enormously and hurting ourselves by treating a class of our citizens as different and as less worthy of respect. It is not American. It’s not what is a part of our culture. It’s damaging to America to take a class of our citizens who are every bit as contributors to our society. They’re taxpayers. They’re caring, loving, law-abiding people. And to say, “We don’t recognize.” You read the language of Proposition 8. “Your relationship is not recognized. It’s a second-class citizenship.”
Boies:
The only way that we have engaged in the kind of discrimination that we have, historically, is by somehow overlooking the humanity of the people that we discriminate against. We did that with African Americans. We did that with Asians. We did that with American Indians. We did that with women. We’re doing it with gays and lesbians today.
We somehow put out of our mind the fact that we’re discriminating against another human being by characterizing them as somehow not like us. Not equal to us. Not fully human. Not a full citizen. And that’s what is so pernicious about this campaign.
Because the judge in Perry blocked public broadcast, it’s not getting as much attention as Prop 8 did in the 2008 election cycle. But over at marriagetrial.com, two enterprising journalists/filmmakers have filled the gap by producing dramatized versions of each day’s testimony.