Legal News

Prop. 8 Defenders Say Plaintiffs Attacked ?Orthodox Religious Beliefs?

By Ashby Jones

Not all that much should be going on in the Prop. 8 case out in California. After all, the trial ended last month. Post-trial briefing isn’t due until the end of February, with federal judge Vaughn Walker slated to make a ruling sometime thereafter.

But the case has been anything but dead since wrapping. We’ve had a flood of amicus briefs. We also witnessed a flurry of activity surrounding the news that judge Walker is himself gay.

Now, we’ve got a bit more to throw at you, LBers. One of the lawyers handling the case for the defendants (that is, defending the constitutionality of Prop. 8) sent us a note recently attacking the plaintiffs’ approach in the case. Specifically, Brian Raum, the head of marriage litigation for the Alliance Defense Fund, has accused the plaintiffs and their lead lawyers, David Boies and Ted Olson, of unfairly attacking religion.

In an email, Raum wrote to us:

As one of the attorneys defending California's marriage amendment, I've been uniquely privileged to be at trial in federal court over [recent] weeks. As the proceedings unfolded, though, something became perfectly clear that can only be described as outrageous. This lawsuit challenges the constitutionality of the voter-enacted state amendment protecting marriage. But the plaintiffs, who want to redefine marriage, have focused unabashedly on a systematic attack of orthodox religious beliefs.

The plaintiffs deliberately and repeatedly attempted to vilify Proposition 8 supporters for their beliefs regarding marriage, family, and sexuality. Specifically, they presented the teachings of the Catholic, Evangelical, Greek Orthodox, and Orthodox Jewish faiths as evidence for their cause in an attempt to demonstrate that such teachings are bigoted, irrational, and-yes-unconstitutional.

David Boies, one of the attorneys leading the charge to strike down the vote of the California people, specifically suggested that "the religious majority should not be able to use the law to impose their principles on a religious minority." Is he saying that people of faith have no constitutionally legitimate ability to vote on legislation unless that vote is a sanitized and secular expression of public policy?

To be sure, there are many non-religious reasons to support California's marriage amendment. . . . But that is no matter to the plaintiffs' attorneys, who instead made a concerted effort to focus on those Californians whose vote may have been influenced by some level of religious conviction. Even if we could know the mind of each individual voter, such inquiry itself is unconstitutional. . . .

They’re harsh words that, of course, beg for some sort of response. So we checked in with David Boies, the lead lawyer for the plaintiffs.

Boies had two main objections to Raum’s assertions: 1) that it was the defendants, not his side, that brought up the whole notion of religion to begin with; and 2) at no point in the trial did the plaintiffs deride religion.

On the second point, Boies said:

We’ve always said that we recognize that there are people who have genuine religious beliefs that from a theological standpoint dictate that marriage should be between and a woman. The First Amendment guarantees people that freedom of voice. We’d never try to burden that or diminish that or try to interfere with those religious beliefs. What we have insisted upon is the other half of the First Amendment, the Establishment Clause, which says that a majority is not entitled to impose its religious beliefs on a minority.

Whether Boies and Olson denigrated religion during the Prop. 8 trial is, we imagine, largely a matter of personal interpretation. But Raum’s missive to us is an interesting and provocative attempt, it seems, to change the terms of the debate — to make the case not about oppressed gays and lesbians, but a different oppressed group — that of religious believers. In other words, did the state “establish” religion through the passage of Proposition 8? Or were voters simply “freely exercising” their right to religious expression in approving of Prop. 8?

We’ll be eager to check out how much air time these arguments get in the briefing. Until then, stay tuned.

Full post as published by Law Blog - WSJ.com on February 10, 2010 (boomark / email).