Marriage Watch / Maggie Gallagher

What happened to the dynamite duo of Ted Olson and David Boies?  After the first week of this trial the shine is off their allegedly invincible legal skills.

First loss, as Brian Brown wrote:

"Once again the Supreme Court has stepped in to protect marriage supporters from potential harassment and intimidation, this time by squashing the effort by Judge Vaughn Walker to break all the rules in order to televise this trial.

That's two strikes against Judge Walker, by the way; even the liberal Ninth Circuit couldn't stomach Judge Walker's earlier ruling allowing an unlimited fishing expedition into the private campaign strategy communications of Protect Marriage. 

And it also makes the second time that Justice Anthony Kennedy has stepped forward to try to protect at least the process, to create a more even playing field for supporters of marriage. You will remember it was Justice Kennedy who granted an emergency stay that prevented the release of the names of thousands of Washingtonians who signed a petition overturning an "all-but-marriage" bill, after some gay-marriage advocates said they would try to replicate the effort in California to post these names on the internet.

Justice Kennedy joined four other justices to keep Judge Walker from hastily lifting the TV ban in order to televise the Prop 8 trial: "The balance of equities favors applicants. While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast."

Brian continues, "The trial, which gay marriage advocates had hoped would be some kind of cultural zeitgeist-shifting moment, is turning out to be a bit of a dud from their point of view. . . The hotshot team of Olson and Boies, misled by their own intellectual arrogance, which includes a profound lack of respect for the views of those Americans who disagree with them (including 7 million Californians who voted for Prop 8), appears off to a not-so-hot start. Harvard Prof. Nancy Cott says procreation--the creation of new life in the only kind of union where that child can reliably know and be known by, love and be loved by her own mom and dad--is no longer really a purpose of marriage (although she has to admit that it once was, at least sort of). Marriage is now about adults and our relationships. Once again, gay-marriage advocates are only reinforcing what we've been telling you: You can't support both the idea that "children need a mom and dad" and "gay marriage." Gay marriage ends one marriage tradition and irrevocably marks the beginning of using the law to reinforce a radically different idea about marriage. . . .

The obvious truth, repeated over and over again in the legal history of marriage in the U.S., is that the government thought marriage mattered because marital unions produce and protect children. They do this in two ways: First, by creating faithful, exclusive, enduring sexual unions that create the best context fo conceiving children. And second, by preventing (if the man and woman are faithful) the default harms of unregulated opposite-sex union: many fatherless children, many overburdened mothers, many men disconnected from family life.

This is the argument that Ted Olson told Newsweek "cannot be taken seriously." Good luck with that, Ted. Seven million Californians took it very seriously, and so do the majority of state courts that have considered it, several international human rights courts, and of course every major faith tradition.

On Christianity and marriage, San Francisco attorney Therese Stewart worked hard to establish that Catholics' and Baptists' views on marriage and sex are illegitimate bigotry. She actually had Yale Prof. George Chauncey read into the record official statements by the Vatican and by the Southern Baptist Convention. I had to laugh to keep from crying. This is the city that in an official resolution condemned the Catholic Church and urged a sitting Catholic archbishop to "defy" his own faith and side with the City Council's on gay adoption. Could gay-marriage advocates try any harder to fuel the perception that a victory for gay marriage requires the defeat of religious liberty, tolerance, and civility for Christianity and other traditional faiths?

I don't really think this is the way to win Justice Kennedy's heart. We'll see."