Tony Perkins, of the Family Research Council, talks about "the Supreme Court's back alley type Roe v. Wade decision" and the "guardrails" of nature.

On "Fox News Sunday" today, Tony Perkins, president of the Family Research Council, attempted to match wits on the subject of marriage equality with former Solicitor General Ted Olson. Early on, the moderator, Chris Wallace, asked Perkins about the Supreme Court's recent denial of review in seven same-sex marriage cases from different lower courts:

TONY PERKINS: ... I think the effect of this is the court did a back alley type Roe v. Wade decision by letting the lower courts do their evil bidding. 

So... back alley abortions... we know what those are. A "back alley decision"...  would be... hmmm... as if judges who are not Supreme Court judges are doing something shadowy and illicit? And leaving a case unreviewed is somehow — working backwards in time, I guess — getting the lower courts to do what the Supreme Court has bidden? This is pretty insulting to the vast majority of judges in this country, the judges who are not Supreme Court justices. These people are all following a duty — whether you like how they do it or not — to apply constitutional law in the cases within their jurisdiction. If all the lower courts agree on an issue, it's not sneaky or arrogant or evil for the Supreme Court to fill its docket with other cases.

Olson ignores the "back alley" smear and concentrates on the comparison of same-sex marriage to abortion. The better analogy is to interracial marriage, he says. Perkins says that's "apples and oranges." Why?

"Having watched the arguments in the same-sex marriage cases, it is hard for me to imagine how they would have been different..."

"... if small, unobtrusive cameras had been there to record what was going on. With or without cameras, Justice Antonin Scalia was his spirited self, demanding that lawyer Theodore Olson tell him 'when did it become unconstitutional to exclude homosexuals from marriage?' Olson's sharp reply would not have been different with cameras on hand. 'When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?' Olson said. Judges and lawyers with experience before cameras in other courtrooms universally say that, especially at the appellate level, the questioning, listening and responding demand all their faculties. They soon forget cameras are there."

Writes Tony Mauro.

Now, we don't get video, but we do get this. I've clipped the same section Mauro refers to:

So then, what more would we have with video, and is it important? I remember opining on this subject back in 2005. I thought of it in terms not only of public access but as a check on the Court:

"If California provides all the substantive benefits of marriage to same-sex domestic partnerships, are you seriously arguing that... if the case before us now were from a State that doesn't provide any of those benefits to same-sex couples, this case would come out differently?"

Justice Alito asked Ted Olson in the Prop 8 oral argument yesterday. Consider the problem of trying to narrow the case by limiting it to California, where voters amended the state constitution to restrict marriage to opposite-sex couples and where they permit civil unions that give gay people access to everything but the word "marriage."

There was much talk about the perversity of imposing more severe constitutional limitations on a state that has done much — but not everything — to include gay people and to give great leeway to the states that have excluded gay people altogether.

It does make some sense. The states that resist any inclusion have preserved arguments about the function of marriage that states like California have given up by structuring civil unions to provide almost equal treatment. It's hard to articulate a legitimate interest in only withholding the name.

But if the Court wants to leave the issue of same-sex marriage to the political process, why would it attach a consequence to taking the intermediate step of creating the civil unions category? That hampers the very process it would be purporting to enable.

ADDED: Later in the argument, Justice Scalia had this colloquy with Solicitor General Verrilli (who argued against Prop 8):

GENERAL VERRILLI: We are not … taking the position that it is required throughout the country. We think that that ought to be left open for a future adjudication in other States that don't have the situation California has.

JUSTICE SCALIA: So your -- your position is only if a State allows civil unions does it become unconstitutional to forbid same-sex marriage, right?

Amusingly, at exactly this point, Verrilli’s time’s-up red light comes on and he says” “It’s on.” He could have said, “Saved by the light!” But Chief Justice Roberts tells him to go on.

GENERAL VERRILLI: … I would just take out a red pen and take the word "only" out of that sentence. When that is true, then the Equal Protection Clause forbids the exclusion of same-sex marriage, and it's an open question otherwise.

In other words, to recapture that “only” and put it in a paraphrase: He’s only arguing now that his argument is limited to states like California. If he wins this case, in the next case, when the other issue is presented, he will argue that ssm is required everywhere. Anyone can predict that. Roberts pushes:

CHIEF JUSTICE ROBERTS: You [say] it's got to happen right now in California, but you don't even have a position about whether it's required in the rest of the country.

GENERAL VERRILLI: If -- with respect to a State that allows gay couples to have children and to have families and then denies the stabilizing effect.

What state doesn’t “allow” gay couples to have children and families? I can infer that Verrilli means allow adoption by gay couples, but it’s obvious that the concern about children extends to all the states, since a gay person can be a natural parent to a child and then live with a partner who is not the child’s parents.

Roberts doesn’t pursue that but sticks with his original point. Presumably, he's building the argument that it's incoherent to strike down Prop 8 without finding a right to ssm that applies to all the states.

CHIEF JUSTICE ROBERTS: So it's got to happen right away in those States where same-sex couples have every legal right that married couples do.

GENERAL VERRILLI: Well, we think… you can wait in…

CHIEF JUSTICE ROBERTS: States where they have fewer legal rights.

GENERAL VERRILLI: What I said is it's an open question with respect to those States and the Court should wait and see what kind of a record a State could make. But in California you can't make the record to justify the exclusion….

Verrilli is saying that the state that permits adoption by gay couples can’t go back to the argument that a child is better off having both a mother and a father in the home. Does this cure the incoherence? I doubt it. It's a distinction that might be employed by a judge who looks forward to extending ssm to all the states in the next case. I don't think Roberts is one of those judges.

"It's easy to make fun of the folks in Georgia who don't want schools to use the word 'evolution' when teaching science..."

"But how different is it, really, from proposals to resolve the gay marriage issue by using the term 'civil unions' instead of 'marriage'?"

I think that's my first post about same-sex marriage, on February 3, 2004 — 3 weeks into blogging. I was looking for that post — which critiques presidential candidate Howard Dean's pride in the marriage/civil unions distinction — as a result of reading the Ted Olson/David Boies op-ed in the WSJ today.

Googling for the old post with the search terms althouse + Howard Dean + civil unions, I was surprised to find something I'd written in December 2003. That's the month before I started this blog. It turns out there's an archive from the Religion Law email list — a list of lawprofs — and there's a thread I started called "Civil unions and marriage."

Email lists were a sort of proto-blogging back then. I wish I'd busted loose into blogging earlier. All the bloggable things that didn't get blogged:

We chose not to do gay marriage because there were many people who felt that marriage was a religious institution, and churches ought to be able to make their own decisions about who gets married and who doesn't. But we felt it was really important to do equal rights under the law for every single American, and Vermont is the only state in the country where everybody has the same rights as everyone else....

[So why are we quibbling over a name?]

Because marriage is very important to a lot of people who are pretty religious.  

That was Howard Dean, back in 2003. Today, in the Supreme Court, we're still "quibbling" over that name. Is it a tiny thing or a big deal?

Theodore Olson and David Boies in the WSJ: "... Gays Deserve Equal Rights."

An op-ed on the day of the big oral argument:

[O]ur opponents argue that the growing support for marriage equality means that the courts should leave to the states whether to permit marriage equality sometime in the indefinite future.

But as we proved during a 12-day trial that we won in a California federal district court in 2010, laws like Proposition 8 cause devastating harm to gay and lesbian couples and their children. Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority. The damage this does to their hearts and minds is immeasurable—and the damage it does to all of us and our belief in the nation's ideal of equality is incalculable.

For one to say that the Supreme Court should leave the question of marriage equality to the political processes of the states is to say that states should remain free to discriminate—to impose this pain and humiliation on gay men and lesbians and their children—for as long as they wish, without justification. The Constitution forbids such an indecent result. It did not tolerate it in separate schools and drinking fountains, it did not tolerate it with respect to bans on interracial marriage, and it does not tolerate it here.

Paul Ryan's sparring partner, playing Joe Biden at the debate practice sessions, revealed.

Ted Olson!

Perfect. Ryan should be honed to a sharp edge.

Now, who's playing Ryan for Biden? Chris Van Hollen. Here's Van Hollen's DNC speech in case you have trouble picturing that.

California Supreme Court decides that Prop 8 sponsors have standing to defend it.

The Court was responding to a state law question referred to it by the 9th Circuit Court of Appeals, which is considering whether the ban on same-sex marriage violates the federal Constitution.

The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.

"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the [unanimous] court....

"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. Solicitor General during the Bush administration. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."

ADDED: Here's the California Supreme Court opinion (PDF). The California Supreme Court observes that the 9th Circuit saw the federal issue of standing as hinging on a state law question: whether "the official proponents of an initiative have authority under California law to assert the state‘s interest in the initiative measure‘s validity." The California Supreme Court's opinion stresses the nature of the initiative power, which was adopted "as one means of restoring the people‘s rightful control over their government":

Former Solicitor General Paul Clement quits King & Spalding over his defending the Defense of Marriage Act.

He writes:

"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do... I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."

Politico's Ben Smith reported the firm's withdrawal from the case as "a real victory for supporters of same-sex marriage -- and marking what seems like real marginalization for its foes." It quoted the chairman of the firm, Robert D. Hays, Jr., saying: "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate." I'd love to hear the gory details.

Anyway, we talked about Clement's role last week, here. I said:

I would like to see the Defense of Marriage Act go, and I encouraged the Obama administration to decline to defend it, but I don't think it's "indefensible," and in fact, it deserves to be defended, and the House Republicans did the right thing in hiring Clement. The country deserves a well-briefed, well-argued case presented to the Supreme Court. The other side is already represented by Theodore Olson, another former Solicitor General. I hope Olson wins, but not because he's the better lawyer. It is absolutely fitting that he be matched with a lawyer of equal stature, skill, and will to prevail.

Talking Points Memo turns 10.

"The post was about Ted Olson making his debut as the chief Bush lawyer in the emerging Florida Recount battle."

Yes, it's also the 10-year anniversary of the big Florida recount. I wish I'd been blogging then! It would have been so much fun to write about that every step of the way. I'd have liked to show you in real time that I really wanted my guy, Al Gore, to win, and I also accepted nearly everything the Supreme Court did in the complicated litigation over the recount. But there are so many missed blogging opportunities in the past. I'd have loved to have blogged the Clinton scandals too. And the Clarence Thomas hearings. The Bork hearings.

Here's that first TPM post:

As if things couldn't get any weirder, did you notice the name of the lawyer who made the Republicans' unsuccessful arguments before that federal judge today? That would be Ted Olson, a man Washingtonians often refer to as a 'Washington super-lawyer.' Who is Ted Olson? Well, that would be the same one knee-deep in the Arkansas Project, which in league with the American Spectator spent a ton of money digging dirt on Bill Clinton in Arkansas....

Well, now, isn't that weird? I just blogged this morning about that Think Progress blogger who confronted Justice Alito and he was going on about the Arkansas Project:

Last night, the American Spectator — a right-wing magazine known for its role in the “Arkansas Project,” a well-funded effort to invent stories with the goal of eventually impeaching President Clinton — held its annual gala fundraising event....

That first TPM post wove Justice Scalia into its conspiracy-ish riff:

Of course, Olson... is also the Olson from Morrison v. Olson, the supreme court case which upheld the constitutinality of the Independent Counsel statute. Olson was against it. Come to think of it, we Dems now think he and Scalia were right. So maybe chalk one up in his favor.

So that's how TPM first talked about law. Yikes. Spelled "constitutionality" wrong too.

I'm going to start reading the lefty blogs more and writing about them, I think. I'm interested in the way they string ideas together, and I think they need some more push back.

Do you want me to write more about lefty blogs?
	No. Don't give them traffic.
	No. I don't care what they say.
	Yes. They need monitoring and criticism.
	Yes. Broaden your view and see what happens.
	Eh. Not sure. Depends on how sharp and funny you make it.
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Ted Olson says: "It would be appropriate for them to say 'the law has been deemed unconstitutional, we are not going to seek further review of that.'"

I agree.

"It happens every once in awhile at the federal level when the solicitor general, on behalf of the U.S., will confess error or decline to defend a law," said former George W. Bush administration solicitor general Ted Olson, who is leading the legal challenge of California's ban on same-sex marriage. Gov. Arnold Schwarzenegger and the state attorney general have both declined to defend the law in court.

"I don't know what is going through the [Obama] administration's thought process on 'don't ask, don't tell'...."

He doesn't know, but I bet he has some ideas. He's too dignified to tell. But I think we know.

Ted Olson...

... "softened"? By his new wife? I find it hard to believe. But if he gets a new haircut and new glasses, then I might believe.

"Would you like your right to free speech... put up to a vote and say well, if five states approved it, let’s wait till the other 45 states do?"

"Would you like Fox’s right to free press...? These are fundamental constitutional rights. The Bill of Rights guarantees Fox News and you, Chris Wallace, the right to speak. It’s in the constitution." 

Said Ted Olson.

Here's something Rush Limbaugh said in the middle of his monologue about the Prop 8 opinion:

The left uses issues such as gay marriage as battering rams to wreck the US Constitution and that's what's going on here. ...  Well, the Democrats who are cheering this ruling, overturning California's Prop 8, are not really cheering gay marriage.  They want gays to believe that they are.  They are cheering and they are giving standing ovations to this judge for weakening the US Constitution, for ripping it to shreds, because that is the objective of the American left....

The Constitution was written to deemphasize the power of federal governments.  Our Founders had fled tyranny.  They certainly didn't set up tyranny when they founded this country with the Constitution. But the left -- the Marxists, socialists, progressives, whatever you want to call them -- want tyranny and they want to be in charge of it.  The Constitution stands in their way.  So this judge is being cheered ostensibly for recognizing homophobia in the heterosexual community for thousands of years.

Thousands of years of discriminatory homophobia has led to gay people not being allowed to marry, and this judge (finally someone enlightened) has come along and seen it. Wrong.  They are cheering the fact that this judge has rammed the Constitution with a battering ram.  These are the same Democrats who have either remained silent or openly advocated the building of a mosque where Sharia law is the word of Allah at Ground Zero.  Now, Sharia law not only bans gay marriage, it bans gays. Permanently.  So why in the world would leftists who are cheering a judge who has just said that Prop 8, voted on by seven million Californians is unconstitutional because of decades -- generations, thousands of years -- of homophobia and discrimination practiced by heterosexuals...?

I like Rush enough to believe that when he got to this part of his monologue, he knew he'd become incoherent. If you don't want the majority's idea of morality imposed on everyone, you need individual rights that courts enforce against the will of the majority. The Constitution limits what can be imposed on individuals. It limits the federal government, and — with the 14th amendment — it limits the state.

"I thought, why wouldn’t I take this case? Because someone at the Federalist Society thinks I’d be making bad law? I wouldn’t be making bad law."

Ted Olson.