The Federalist Society

Bar Watch Bulletin for Sunday, August 8, 2010

Same-Sex Marriage and Proposition 8

August 9, 2010

ABA Watch is reporting live from the ABA’s Annual Meeting in San Francisco.

David Boies, who served as lead counsel for Al Gore in the 2000 presidential election challenge, delivered the keynote address at the Opening Assembly on Saturday.  Boies is currently serving on the legal team challenging Proposition 8 in California.   He discussed the case in his remarks, which addressed challenges to the rule of law. 

These remarks are excerpted below:

We are a country, like most countries, of “we’s” and “they’s.”  There are the “we’s,” who are the real citizens. The people who have all of the rights.  And then there are the “they’s” who are outside that circle.  And despite the lofty rhetoric of the founding of our country, the fact that we all know is that at the time, the “we” circle was extremely small, surrounded by a lot of “they’s.”  Essentially, the people that had the benefit of the rule of the law, the people who had the benefit of liberty, equality, and protection of fundamental rights were white, male property owners. 

Over the course of the last 200 years, that circle of “we’s” has been constantly expanding.  And it has been constantly expanded on a variety of fronts, both legislative and judicial, and social as well.  But it has been led by the courts, who have recognized the importance of fulfilling the promise in the Declaration of Independence, and in our Constitution, and is not limited to a particular sex or a particular race or a particular ethnic background.  But it speaks to all people.  The Constitution begins “we the people.” 

And even though the ones who wrote that were “we” the white male property owning people, it speaks to all of the citizens of this society, and we have seen legal barriers, with respect to race, with respect to sex, official state-sponsored, state-enforced discrimination eliminated one at a time. 

We still have a great deal to do in this society to eliminate the vestiges of that discrimination and the social impact of that discrimination which inevitably affects the applicability of the rule of law.

But there is only one area in our society in which there continues to be not merely social discrimination, but state-sponsored, state-enforced discrimination against a group of our citizens. And last Wednesday, the federal district court here in the northern district of California took an important step in eliminating that last official discrimination against our gay and lesbian citizens.  [Applause]

And as we progress, in that area and the other areas where social discrimination still undermines the full promise of the rule of law, we have an opportunity to expand the circle of “we” until there are no more “they’s” in this society.  And that is the ultimate promise and the ultimate objective of the rule of law.  That we get to the point where the promise of liberty and equality and the protection of individual rights is something that every citizen equally enjoys. 

Boies spoke of what he perceived to be additional challenges to the rule of the law in the United States. One example he offered is the unequal distribution of resources in the legal system. In particular, the expense and burdens of discovery have varying impact on people depending on their level of resources. While increased efforts to support legal services and pro bono work were needed, even more assistance is necessary.

A second challenge, according to Boies, relates to the jury system. Jurors need better tools to decide complicated cases.

A third challenge, according to Boies, concerns judicial independence. Boies declared a “crisis in terms of financing the justice system in the United States.” He cited low salaries for both state and federal judges, which are often much lower than those of first year associates in large law firms. These salary discrepancies make it difficult to retain qualified judges.

Attacks made on judicial independence, particularly in cases in which judges must decide controversial cases, are also worrisome in Boies's view. He remarked that Judge Vaughn Walker already had been subjected to personal attacks. He noted that because judges could not speak against personal attacks, lawyers need to speak out.

Boies, along with Ted Olson, his co-counsel in the Proposition 8 case, will co-chair a new ABA task force on the preservation of the justice system.  The task force will study access to justice and the underfunding of the judiciary; the need for increased civic education in our schools and society; Hispanic legal rights; and the ABA’s work in the area of disaster response and preparedness.

Same-Sex Marriage — Moving Beyond State Courts

One of the first panels during the ABA’s annual convention addressed the Proposition 8 ruling. 

Raymond Marshall, former president of the Bar Association of San Francisco and the State Bar of California, moderated the program.  Other panelists included Mary Bonauto, the Civil Rights Project Director at Gay & Lesbian Advocates & Defenders (GLAD); Beth Robinson, a Vermont attorney who was co-counsel to the plaintiffs in Baker v. State involving the rights of same-sex couples; and Therese Stewart, chief deputy city attorney of San Francisco.  Ted Olson was scheduled to speak, but was replaced by Stewart after he cancelled.

According to an ABA Media account of the panel, “Marshall emphasized that — in the spirit of the American Bar Association — program planners invited speakers on both sides of the issue to take part in the session, but did not receive any acceptances from the other side.”
Today, members of the House of Delegates will consider a recommendation urging all “state, territorial and tribal governments to eliminate all of their legal barriers to civil marriage between two persons of the same sex who are otherwise eligible to marry.”  Watch for coverage of this recommendation in tomorrow’s Bar Watch. 


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