Theodore Olson, the former Bush administration Solicitor General and plaintiff’s attorney in the Perry v. Schwarzenegger Prop 8 case was on Fox News Sunday yesterday. For nearly fifteen minutes Chris Wallace tried every right-wing talking point he could come up with to get him to crack on the preposterous notion that Teh Gayz have an equal right to marriage in this country, but in the end he had to basically concede that Mr. Olson had done a very good job of making the case for marriage equality.
You can tell that Mr. Wallace is running out of gas when he gets to the point of questioning Mr. Olson about the company he keeps in defending the rights of marriage equality: “Hollywood liberal Rob Reiner”! Eek.
One point that Mr. Wallace did not bring up is the argument made by the religious factions against marriage equality: that same-sex marriage is a violation of God’s law and that the state has a duty to prevent these unholy unions from taking place. That’s because Perry v. Schwarzenegger is a civil rights case, not a case of religious discrimination. The fact that the state has deputized the church in a legal procedure does not have any bearing on the civil matter. Churches or synagogues can refuse to perform same-sex ceremonies just as they can refuse to perform weddings for non-parishioners or non-religious couples, and if the Supreme Court rules that same-sex couples have the right to get married, that won’t change. Granting a right does not force anyone to do anything unless they have been unfairly denying that right to someone in the first place.
Meanwhile, over at CBS on Face The Nation, David Boies, Mr. Olson’s co-counsel, went up against Tony Perkins, the head of the Family Research Council (aka the Church of I Hate You) and basically called him a liar on national TV.
“In a court of law you’ve got to come in and you’ve got to support those opinions, you’ve got to stand up under oath and cross-examination,” Boies said. “And what we saw at trial is that it’s very easy for the people who want to deprive gay and lesbian citizens of the right to vote [sic] to make all sorts of statements and campaign literature, or in debates where they can’t be cross-examined.
“But when they come into court and they have to support those opinions and they have to defend those opinions under oath and cross-examination, those opinions just melt away. And that’s what happened here. There simply wasn’t any evidence, there weren’t any of those studies. There weren’t any empirical studies. That’s just made up. That’s junk science. It’s easy to say that on television. But a witness stand is a lonely place to lie. And when you come into court you can’t do that.
“That’s what we proved: We put fear and prejudice on trial, and fear and prejudice lost,” Boies said.
Both of these examples are how this case is going to be won.