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."

Marriage Watch / Maggie Gallagher

San Francisco Attorney Theresa Stewart examined gay historian and Yale Prof. George Chauncey on religious groups's vviews on marriage.  The unseemly suggestion is that it is perfectly valid for voters to base their views on reading Prof. Chauncey's books, but that the great historic faith traditions views on sex and marriage somehow represent illegitimate hatred and bigotry.  Is this really where gay marriage advocates wnat to go?  Validating every religious persons fears about what gay marriage means for religious freedom? 

(This is a pro-gay marriage liveblog of the testimony, here:   http://prop8trialtracker.com/)

Maybe this is a good argument in court.  San Francisco by the way is a government that passed an extraordinary resolution condeming the Catholic Church and urging church people to defy their leaders. (http://www.cnsnews.com/public/content/article.aspx?RsrcID=32433)  I cannot think of a more direct attempt by the state to impose on the church than to have a government body tell religious people to defy their faith.  This is what tolerance looks like, these days.

Marriage Watch / Maggie Gallagher

Well, no that's not exactly what the "conservative" lawyer fighting to overturn Prop 8 and impose gay marriage said. But when the judge asked him, "If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?"  Ted Olson said yes, that would resolve the constitutional issues, although it would not be politically feasible.

I don't know if he or anyone else recognizes what this statement of Ted Olson's means: the government has no obligation to recognize anyone's marriage as a marriage. What happens to the fundamental right to marriage-or gay marriage--then?  

A distinguished Harvard Prof. Nancy Cott  testified today, according to the LA Times, that "procreation has never been the central purpose of marriage in the United States. Professor Nancy Cott, who has written a book about the history of marriage in the United States, noted that George Washington, the father of the nation, was sterile. Procreation was one of the purposes of marriage but not 'the central or defining purpose,' Cott testifed. The larger purpose was to create stable households, she said."

Okay, so why weren't sisters allowed to wed?  Can't they create stable households?   I mean family members of all kinds live together, and raise children.  Why weren't/aren't these considered marriages? 

People thought there was something kind of central, important, and worth noticing about unions of male and female: they make babies. We need marital unions, in a way we don't need other kinds of relationship, however worthy or unworthy they may be. 

I mean even at Harvard, back in the day, they could see that.   And back in the day, they thought it mattered.

Nothing about the history, the structure, of marriage in the United States makes sense if you extract the reality that sexual unions make new life, were known to do so (even if not in every case) and were valued both for the good marital unions uniquely  produced (children united in families with their mothers and fathers) and the evils they avoided (fatherless children).