Charlie Rose

machngunjoe  02/10/2012 01:04 PM Report

At 12:00, Well said by David Boies, well said indeed. I think America is actually moving forward in this issue and am glad for it. And relatively speaking its moving quite fast. Every 2 years or so brings another state legalizing it.

Gelles  02/10/2012 02:15 AM Report

Two lawyers and a writer. The case for "marriage" between same not opposite sexes. The accident that prevents you from being president of France because people think you may have been a menace to a maid not a lover. The writer who found himself inside another writer -- or vice versa. The coming attractions for these three interviews could not have told a TV watcher just how wonderful this hour would be. I hope to save the TV version for a very long time.

Most of these interviews are missing diagrams to explain how things are or ought to be. But these three are missing nothing. They are happy to use words to tell us all there is to know about their meaning.

Richard_DeBiase  02/09/2012 11:18 PM Report

At lawforce,

Well certainly I think your second posting (02/09/2012 08:45 PM) is weak. Maybe some other people on this list will let us know if you won your argument.

In your first comment (02/09/2012 05:41 PM) you say that homosexuality cannot be a right because it is not mentioned in the founding documents. But you don't mention the effect on that argument of the "enumeration clause" of the 9th Amendment mentioned in my 02/09/2012 08:11 PM comment.

Also in your second comment you say that 5,000 years of history is not an argument. But it seems to be the entire basis of your argument in your first comment.

I realize that your comment about Cher was meant to be facetious. But you don't answer the question how do we determine who is a man and who is a woman? You also say leave the "1" [percent] to be treated as "special cases"; I'm still asking treated by who? You also say in your second comment, it's the person that matters--body, mind & soul--not the genitalia; that sounds like the pro-gay argument to me.

You seem to be claiming to be a lawyer. Wouldn't you really like to take a serious shot at winning your argument?

Ellen_Dibble  02/09/2012 09:21 PM Report

Over the years I've gotten the impression that homosexuals are about 15% of the population, which is a significant voting bloc. If you add bisexuals, hermaphrodites, that bloc expands, who knows how much. Imagine you're a homosexual, and EVERY fondness is an illegal affair, with zero room for a love you'd want to sing out loud about. Consider the billions of teenagers showing off their heterosexuality, flaunting their capacity for and exercise of heterosexual intimacy. Now squelch that. What kind of an animal do you get anyway. (I say that with "attitude." If you shoot someone, he makes a pretty good witness against you; put it like that.)

Or take a senior-ish citizen whose passion for life is more and more displaced from the reproductive organs, and you might say that passion becomes totally unhinged, liberated. I guess that is what Muslim genital mutilation achieves: it detaches something important, physically debauches one's emotional structures, "deconstructs" desire itself, to go to the etymology of the word. (Sorry, but I've been thinking about that; we hags I think are more than 15% of the population.) People, women especially, over a certain age are weirder than the vital exuberant young of all sorts.

But consider, if young homosexuals had been reproducing for the last 5,000 years, religion would probably have been insisting that they get married, too, for the same 5,000 years.

lawforce  02/09/2012 08:45 PM Report

Assuming a priori that marriage is a "minority right" or an "unalienable right" or a "fundamental right" makes the argument void ab initio; as with computers: garbage in -- garbage out. The foundational writings of our Body Politic simply do not support such a false assumption.

5,000 years of Civilized History of marriage being between a man and a woman (with our without procreation), is not an argument but an undeniable fact. The issue is the efficacy of social mores and norms, as well as cultural morals and values versus pandering to gay/lesbian sentimentalities—certainly not sound sensibilities—which denigrate the very foundation of laws, morals, and values on which our Nation, indeed our Civilization, have been built.

As for who is a man or a woman, maybe Cher could more aptly address that issue from personal experience, since biologically it's the person that matters--body, mind & soul--not the genitalia. When speaking of men marrying women, let's just say the the governing laws and principles can safely address the "99" and leave the "1" to be treated as "special cases," who nonetheless are "endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Richard_DeBiase  02/09/2012 08:11 PM Report

In the spirit of the "enumeration clause" of the 9th Amendment, this comment should not be construed as every comment I could possibly make.

First, I'm going to start with: "majority rule, but minority rights". Minority rights are there to protect unpopular minorities from the majority. This looks like a minority rights situation to me.

Second, I'm afraid I don't buy the 5,000 years of history argument. It seems to me that both the "establishment" and "free exercise" clauses of the 1st Amendment were intended specifically to reverse prior history; very specifically, to avoid getting into another situation like the English Civil War of the 1600's. And since Americans come from every country in the world, whose history should control? If it is English history, do we really know what the Druids thought?

Third, who gets to define who is a man and who is a woman? Is this a chromosome test? It is my understanding that about 1 out of every 100 people is a hermaphrodite; at the risk of being indelicate, how much of a man do they have to be?

Ellen_Dibble  02/09/2012 06:08 PM Report

Would we all be happier if Boies and Olson had not gotten involved in Bush v Gore? Are they trying to "prove" something now by having a common cause? Interesting idea.

But I take exception to lawforce's perspective on marriage as seen (or ignored) by the founding fathers. (Boy am I going out on a limb, but anyways.) I have a hunch Franklin, Washington, Jefferson, Adams saw marriage as a religious commitment, something between a couple and God, witnessed by the community.

I seem to remember reading something to the effect the government only got "involved" in marriage when the income tax came into being, and when Social Security began to be tied in with marriage and family and all the responsibilities that are otherwise "before God" and private.

So it seems that the IRS and Social Security Administration ("rights," as gay advocates explain) have to catch up to the fact that people live in lifelong committed nuclear units (however you call it) that are not otherwise recognized by churches or city registers.

It seems to me that marriage probably came into being between man and woman because people noted births came about between a man and a woman, and the idea of making the man and woman responsible to each other was a way of keeping children safe and attached to the true father.

Before DNA testing one had only one's honor to assure this was true. Before about 1960 and "the pill," the strictures of marriage were the main guarantor that pregnancy and offspring went with the proper father. Imagine a time before the cell biology of sperm and ovum were known.

It really wouldn't have been important what sort of "sacred" bonds existed among those who didn't procreate, child-wise.

But child-wise, now you've got The Pill. You've got control where before you only had "honor."

And you've got the IRS and Social Security. Also Medicare. Marriage is entangled with government, like it or not, unless we elect lots and lots of representatives who want to unwind All of That, and bring us back to the level of government we had in 1790.

lawforce  02/09/2012 05:41 PM Report

David Boies is an attorney, who has been involved in various high-profile cases in the United States, including proffering the losing arguments in Bush v. Gore, 531 U.S. 98 (2000). High-profile attorneys Boies and Ted Olson couldn’t have been better cast for their 'pop politico' star appearances before the High Court in the year 2000. Boies represented then Vice President Al Gore, while Olson provided his expertise to George W. Bush in the post-election lawsuits related to the Florida recount.

Where these two attorneys came from and the cases they’ve left, and continue to leave, in their wake reveal at least as much about them, and their self-aggrandizing egos, as about where Florida’s electoral hurricane ended up. Their participation in the Florida fracas showed just how determined each attorney was to outmaneuver the other in the legal rulings that determined who was sworn in as President of the United States in January 2001.

Now they have turned their 'pop politico' attention to California’s Proposition 8—the democratic voice of California’s citizens, which made clear that even on the “Left Coast,” the proverbial land of “fruits and nuts” (my birthplace [L.A.] and place of high school, undergraduate and law school [both UCLA] education), California’s lawful and truly democratic Proposition process showed that the moral, social, and religious institution of marriage should remain as it has for over the last 5000 years. Somehow, the self-absorbed Boies does not find meaning and/or soundness in 5000 years of 'social precedent.' Likewise, he apparently finds no meaning in the lawful process of our State, which contradicts Boies’ bald assertion that the majority views gay marriage as permissible. He amazingly confuses a poll, or even polls, with a lawfully conducted and fully democratic legal process! His inability and/or unwillingness to see both sides of this compelling legal and social issue is truly astounding, appalling and pathetic.

This supposed constitutional scholar and High Court jurist also fails to note that neither the word “marry” nor “marriage” appear anywhere in the Constitution, the Bill or Rights, in any of the subsequent Amendments, or even in the Declaration of Independence, in particular, Jefferson’s great proclamation: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

Marriage was neither one of the “unalienable rights” at our Nation’s founding, nor should it be morphed into our core, fundamental rights in Our Third Century, since marriage is more than a 200+ year-old statutory or Constitutional construct--it is a 5000 year-old moral, social, and religious institution.

Boies equates maintaining a 5000 year-old moral, social, and religious institution with discrimination or violation of rights, but not once explains how maintaining the “man/woman marriage institution” diminishes gays’ or lesbians’ fundamental rights of “life, liberty and the pursuit of happiness” or freedom of religion, or free speech, etc., unless of course, he want to read “gay marriage” into the concept of “pursuit of happiness,” without any basis whatsoever in the founding documents of our Nation. If the Founding Father’s intended marriage to be a “fundamental right” under the laws of the United States, do we really believe that Adams, Franklin, Jefferson, et al. would have so obviously failed to make any mention of such a “fundamental right” in any of the Great Writings? Please, Boies and Olsen, pandering to gay/lesbian sentimentalities—certainly not sound sensibilities—denigrates the very foundation of laws, morals, and values on which our Nation has been built.

Say I want to have intercourse with a lovely and quite willing young woman, who happens to be 16 years old in our mutual “pursuit of happiness.” Ah, Boies might say, such a union violates the statutory rape laws of the State of California, which have been enacted to maintain a certain probity and morality in the sexual behavior of California’s citizenry. In other States, the under-age sex laws are set at 16, and in other countries the same can be said of sex with even a 14 year-old. But the determination of governmental police power in California makes a young woman under 18 truly “jail bait” for a man 18 years or older.

So where is my right to pursue the sexual relations I and my fictional young lover fervently want to pursue? The answer is that moral, social, and religious mores trump my (and the fictional paramour’s) "non-fundamental rights” to engage in sexual behavior, which is certainly older than the institution of marriage. Accepting Boies’ reasoning, my right to pursue happiness should trump California’s relatively recent in history statutory rape laws, just like he and Olsen argue that gay/lesbian marriage should trump the 5000 years of moral, social, and religious precedents of marriage being a union between a man and a woman.

Boies’ reasoning, while suspect as to the basis in law for any notion of a fundamental right to marriage in our Nation’s founding documents and laws, is devoid of any grasp of the actual meaning of the word “marry,” to wit, “marry (v.) c.1300, from O.Fr. 'marier,' from L. 'maritare' "to wed, marry, give in marriage," from 'maritus' "married man, husband," of uncertain origin, perhaps ult. from "provided with a 'mari,' a young woman, from PIE base 'meri' - "young wife," akin to 'meryo' - "young man" (cf. Skt. 'marya' - "young man, suitor"). Said from 1530 of the priest, etc., who performs the rite. Related: Married; marrying.” See The Online Etymological Dictionary: http://www.etymonline.com/index.php?allowed_in_frame=0&search=marry&searchmode=term.

To summarize: (a) 5000 years of moral, social, and religious mores trump gays’ and lesbian’s right to rob marriage of its moral, social, and religious meanings and value, which grow out of many millennia of World History, (b) California's truly democratic and legal Proposition process trumps the self-serving polls & surveys that Boies & Olson, et al. trot out to deny the democratic process, and (c) 100’s of years of etymological usage of our modern word, “marry,” trump their 'pop politico' attempts to undermine a cornerstone of our Civilization's and Nation’s identity, indeed, to uproot thousands of years of Who We Are, What We Do, and How We Live on this planet.

RVH  02/09/2012 04:50 PM Report

I am glad that at the end of this extremely one sided interview that Charlie Rose stated that he would try to find a spokesperson for Proposition 8 supporters. There are good reasons for opposing same sex marriage (see e.g. http://www.marriageinstitute.ca/images/somerville.pdf) and I hope that a well spoken individual can be found to voice them.

Judge Walker and now the 9th Circuit Court have disenfranchised all California voters, regardless of how they voted on the proposition, and substituted their own opinions for how the fundamental unit of our society should be defined. Judge Walker's claim that my vote cannot count because it reflects a "private moral view" is frightening. Are my views "private," while his are not? I would like my one small say on this critical matter and hope that the U.S. Supreme Court will give me my vote back, no matter how disrespectable Mr. Boies believes that my convictions are.

Ellen_Dibble  02/09/2012 03:06 PM Report

Thanks for the Romer v Evans cite, Richard. Checking Wikipedia I find why I'm not a lawyer. When Boies says there will be more judicial proceedings and legislative actions, there is already a thicket. I see: "The decision in Romer set the stage for Lawrence v. Texas (2003), where the Court overruled its decision in Bowers." Hmm.

And checking further, I find that Cincinnati has been 180 degrees over 1993 to 2003: "In 1993, Cincinnati, Ohio, passed Ballot Issue 3, an amendment to the city charter, which forbade the city from adopting or enforcing civil rights ordinances based on sexual orientation, the only municipality in the United States to pass such a restriction. The wording of Cincinnati's amendment was almost identical to that of Colorado's. The amendment was upheld by the Sixth Circuit Court of Appeals in 1996 but remanded by the Supreme Court for further consideration in 1997 in the wake of the Romer decision. The Sixth Circuit upheld the amendment a second time, differentiating it from the state-level amendment on the grounds that it was a local government action of the type that Amendment 2 was designed to pre-empt. On October 13, 1998, the Supreme Court rejected an appeal, allowing the Sixth Circuit decision and the city amendment to stand.[3] In 2004, Cincinnati voters overturned the amendment."

Where I live, the argument against gay marriage that I've heard is that homosexuals are perpetual adolescents who don't want to settle down and take responsibility. (A nonwinning argument, by the way.)

So -- so therefore you fight passionately to forbid the right to settle down and take responsibility???? It's easy to differentiate heterosexual marriage by calling it that, heterosexual marriage, by the way.

And plenty of same-sex unions manage to have children, as well as adopt them, and in vitro fertilization is just one way. I do think it would be good to have a word to specify same-sex marriage, though. "Partner" is inadequate.

Richard_DeBiase  02/09/2012 01:32 PM Report

And a correction to my 02/09/2012 11:47 AM comment below...

I use the spelling Roamer; I believe this should be Romer. I believe Mr. Boies was referring to the case Romer v. Evans (1996).

Richard_DeBiase  02/09/2012 12:36 PM Report

For clarification of my 02/09/2012 12:14 PM comment below...

I should have written, we have as much right to be married as religious people.

I hope I did not confuse anyone into thinking that we are religious.

Richard_DeBiase  02/09/2012 12:14 PM Report

For the record...

My wife (female) and I (male) got married in a courthouse in California 30 years ago.

The piece of paper that we got from the State of California says "Certificate of Marriage". It does NOT say "Certificate of Civil Union". I think the word "marriage" is an important legal term. Especially since we did not have to get remarried when we moved to Illinois, and our marriage is recognized by both the federal government and every state in the union.

Also, for those people who cite procreation as an argument, we have never had children.

Freedom of religion means, we have as much right to be married as any religious people.

REMant  02/09/2012 11:49 AM Report

Huh? California and New York are the ANTI-cultural capitals of the United States. Civil marriage is arguably no marriage, where the concern is with family. And arguably the state govts have no business in it under the First Amendment, as it is an establishment of religion. Certainly the Fed'l govt has none. What really does it have to do with anything except the question of equal rights? The Cato Institute is less a conservative org than a libertarian one, so it is not too surprising they could agree on looking at it from a contractual point of view. But since marriage is not a matter of contract - is not a libertarian issue - the proper course of action is not to turn it over to the market, but to whatever legitimate body sanctions it. That could be govt, but since the Fed'l govt is prohibited from getting involved in what is clearly an institution of religion, and since religion is not BANNED by the Constitution, but only made separate, there is no recourse except for the Fed'l govt to get the hell out of the issue, and I would think most if not all of the state govts would have to see the issue the same way. They long ago disestablished religion. They probably have similar establishment clauses somewhere in their constitutions. And most of them are quite a lot more explicit about the acceptance of religion. While they do have freedom of conscience provisions, but this cannot extend to freedom of institutions such as marriage. See http://churchstatelaw.com/stateconstitutions/index.asp

Richard_DeBiase  02/09/2012 11:47 AM Report

Dear Mr. Boies,

In your explanation of the Roamer case, you indicated that the Supreme Court thought it was worse to take a right away, than to never have that right in the first place. I can understand that. Back in the 1970's we seemed to have the right to use marijuana, but that right was taken away by the Reagan Administration through stricter enforcement. I've been bothered by that ever since.

You also indicated that the courts should take public opinion into account. You cited a Gallup poll saying that more than 50% of Americans think gays should be free to marry. Here is a link to another Gallup poll saying that more than 50% of Americans think marijuana should be legalized:

http://www.gallup.com/poll/150149/record-high-americans-favor-legalizing-marijuana.aspx

Maybe in the future, you can take up the cause of getting marijuana relegalized. In the process, you would certainly save the lives of many people in Mexico, Guatemala, Honduras and El Salvador.

Best regards,