Two points:
1. The “Rational Basis” test is classic judicial activism. This test is a means for judges to substitute opinions for the opinions of others. In this case one judge substituted his opionion for the opinions of over 7 million California voters. Prop 8 was the subject of a massive educational effort on both sides of the issue and the people voted in a state wide referedum on the issue. How can Ted Olson say that the votes of over 7 million Californians have no “rational basis.” Ted Olson is not telling the truth when he denies that the decision of Judge Vaughn Walker substituted Vaughn’s, and Olson’s for that matter, own judgement for the will of over 7 million voters. Olson has given up his credentials as a conservative when he adopted all of the findings and holdings in this case. Olson seems more concerned about changing the constitution to read in the right of gay marriage, than his legacy as a conservative.
2. Since when is the U.S. Constitution more important than the California Constitution? The people of the state of California voted to change the Cali Constitution to ban gay marriage and one federal judge has declared a provision of the Cali Constitution “unconstitutional.” There are serious federalism issues raised with this decision.
A+ hogan — great post.

If “marriage” is defined as a union between a man and a woman, gays and lesbians absolutely *can* participate in this union.

No Conservative anywhere would complain if a gay man married a lesbian woman, So where’s the injustice?

Nothing more than “a stable bond between two individuals who work to create a loving household and a social and economic partnership”, then every “household” that consists of a parent and child, or two siblings, or even two persons “shacked up” for a while, is equally entitled to the legal benefits of the status of “marriage”. And, while we’re at it, what is the Constitutional basis for limiting it to “two individuals”? A legal “partnership” is not so restrictive.

Olson’s argument is absurd.

If Olson is correct that marriage is a fundamental right than a person should be able marry whomever they please. There is no slippery slope, a right is a right and there should be no restrictions. Wether it be age, sex, or number of spouses.

Only the liberals and the progressives can find a right where none exists in the Constitution and put limits on rights that are there, the right to bear arms.

If this decssion stands then hello to Gay marriage in all states.

In your post you state, “But, I cannot trust the legal judgment of a fellow who claims to be conservative and yet who clearly believes the Constitution should be used by the Judiciary to invalidate the will of the people based on a protection that does not exist in the Constitution. THAT is the definition of judicial activism…”

The fact is that we live in a Constitutional, representative democracy where the will of the people is secondary to what the law is. Our system is designed to prevent simple majority rule, which is what you are appealing to here.

The real issue is whether or not marriage is a civil right that is protected by the Constitution, and, if so, whether or not the government has a rational reason for denying certain people that civil right.

If you don’t believe it’s a civil right, or you believe that there is a legitimate reason for denying gay Americans that right, then it is legal for a state to ban it. However, if you agree with Mr. Olsen, then the will of the people is a non-issue in the same way that if an unborn child is a life deserving the Constitutional right to life, then abortion should be outlawed regardless of how many Americans are pro-choice.

Frankly I’m shocked to see this on RedState. You may disagree with Ted Olson on this issue, but his credentials as a conservative are certainly far less in question than anyone who writes for this blog. Casting him out from the cause because of what you view as this cardinal sin is, thankfully, not within your power.

any issue, especially this one of gay marriage, which has nothing to do with race, Olson has surely crossed over to the D’s playbook. He apparently thought that using the race meme on national TV would quiet all of the conservatives, as God forbid they are called racists. His comments, and arguments to back his positions are right up there with the worst of the race baiters. There are reasons why he decided to argue for the wrong side, but, they are not immediately obvious, and, his words since are not sincere or truthful.

“But, I cannot trust the legal judgment of a fellow who claims to be conservative and yet who clearly believes the Constitution should be used by the Judiciary to invalidate the will of the people based on a protection that does not exist in the Constitution.”

I disagree with anybody who invokes “the will of the people” in this debate. Such will was only relevant in the passage of Prop. 8.

At this point, the argument should be focused on what is required/prohibited by the Constitution. Any other arguments (polls, popular votes, policy considerations, etc.) are either irrelevant, or the tools of hacks who can’t argue the issue on its merits.

If a gun ban in DC passed by popular vote, surely we wouldn’t set aside Second Amendment and defer to the “will of the people.” Rather, we’d insist that the Constitution govern, no matter the popularity of the outcome. It should be no different in this case. If you’re going to engage in Constitutional debate, then debate the Constitution; not a popularity contest.

It’s fine to hold our adversaries to standard based on Constitutionality. But at the same time, we must expect nothing less of ourselves.

personal that is.
On the issue itself and apart from Ted, the only argument for homosexual marriage is the one used all the time on other issues, the rallying cry for todays modern citizen, “I want it”.
That’s it, nothing else.

decision, see this link: http://online.wsj.com/article/SB10001424052748703748904575411222207921744.html#printMode

the Constitution of the State of California was amended. A clear and concise definition was added. The Federal Judge thought that he liked a definition that can’t be found in the US Constitution better. If the State Constitution defines marriage succinctly, and the Federal Constitution is silent on the issue, then why is this even a Federal issue?

as to how this is a civil rights or due process issue.

It seems to me that gays have the exact same rights as I, a straight male, have. I know that the argument is made that I can ‘marry who I love’ and they can’t, but the truth is I do NOT have the right to ‘marry who I love’, I only have the privilege of marriage under specific conditions.

Assuming I am of legal age and mental capacity, and unmarried, I am permitted to marry someone who:
1) consents,
2) is of legal age and mental capacity,
3) is currently unmarried,
4) is not a close personal relative, and
5) is a human being of the opposite sex.

I probably missed something, but the idea is plain. The criteria is met, the marriage can take place, whether I’m straight or gay. We all are under identical restrictions. It would be unfair if I didn’t have to obey, say, the close personal relative restriction, and a gay person did, but that is not the case.

If it is true that item 5 on my list is ‘arbitrary’ and therefore unfair and unconstitutional, isn’t it also true that all the restrictions above are in the same class? One to a customer is arbitrary, not marrying a sibling or parent is arbitrary, age limitations are arbitrary (and, in fact, vary from state to state, etc.
If society wants to change ANY of the criteria, it is free to do so, but it is a legislative matter, not a judicial one.

Maybe there is a flaw in my argument, but I haven’t heard this point of view discussed before.

Marriage only became federal because of MA’s Supt. Ct.’s “finding” a discrimination in male-female marriage and then the feds. got involved through Clinton’s Defense of Marriage Act.

The law remains in the states. The problem is the states are to recognize each others’ laws; ergo. the Sup. Ct. is likely going to have to decide the states’ marriage cases because now the states cannot agree upon a reciprocal system themselves.

if all 50 states were to amend their marriage statutes to replace your #5 with “Is a human being of the SAME sex”, you would say that you and gay people still have exactly the same right to marry?

The question whether the criteria are arbitrary is exactly that of whether it passes the rational basis test–is there some legitimate state interest advanced?

Consent: obviously there is a legitimate interest in protecting people who do not consent to marry you (or do not consent to virtually anything else you want to do to them).

Is of legal age and mental capacity: effectively requires informed consent. Not just that you say “I do”, but that you are capable of understanding all the consequences of saying so.

Is currently unmarried: Certainly in the case of heterosexuality, there is a rational basis in protecting lineage of children. Producing children of unknown or questionable parentage is a burden on society.

Is not a close personal relative: Among other reasons, the (perhaps overblown) increased risk of birth defects among children.

Now–as another comment said, here is the point it seems you should be arguing. Is there a rational basis for requiring that the marriage happen between people of the opposite sex?(*)

This post (and many of the comments following it) seems to advance the idea that a court can never rule on any issue that has been voted on by a legislature or the people. That is patently ridiculous. To go beyond that and argue that anyone who was on the doubleplusungood side of the argument must be shunned for all eternity is, to be blunt, nutty.

(*) The district court actually argued that “strict scrutiny” should be applied, but that it wasn’t necessary because the proposition did not even meet the rational basis test.

If you get some small community together and decide that sexual relations with 8 year old are OK, and you have a vote approving it, should the courts then stay out of the issue? I mean, the girl may have her right to liberty, but YOU VOTED!

The constitution of course does not contain the literal words “only laws that have a rational basis are legitimate.” It does, however, have an equal protection clause, which effectively says that “only laws that do not violate this clause are legitimate”. Rational basis is the standard courts use for most equal protection claims–was there a rational basis for the government to treat two citizens differently? If not, then the law isn’t valid. You may not agree with this particular application of the equal protection clause nor of the judge’s conclusion, but you do support the equal protection clause…don’t you?

The rational basis test is the reason that a law requiring, for example, people with blue eyes to pay a higher tax rate would be unconstitutional. Absent that idea, how could the idea of equal protection ever be applied? Or in your view, is that blue-eye tax perfectly constitutional?

Furthermore, this idea that courts can and should never do anything is a dangerous line to cross for us conservatives. We have our preferred rights too and we are not afraid to go to courts to ask that laws be thrown out when we see those rights being violated.

That’s what the pro-Prop 8 legal team claimed they would prove; they failed miserably.

You may recall that Mr. Olson’s wife was on the plane that plowed into the Pentagon on 9/11. I recall her being a wonderful, articulate spokesperson for conservative ideas.
I wonder if he would have been a part of this effort if he still had that solid sounding board in his life.

I can’t remember the author; I saw it long ago in a newspaper.

Whatever your view of society’s rules
or procedures that you would deride,
biships still move diagonally,
rooks, forward and side to side.

My point:
Homosexuality is averse to natural law, and sanctioning homosexuality is counter-productive to society. Indeed, it is favoring the aberrant.

For all their supposed belief in (worship of) Darwinian science, liberals sure spend a lot of time undermining the theory of natural selection.

Olson is neither currently a conservative or wise given his argumentation. He is nothing but a silly has-been if this is what he has truly been reduced to arguing. Olson is now officially just another lawyer for the sale; making argument to achieve personal gain, not furtherance of democracy.

Mr. Olson has forgotten his reading of important documents such as the Anti-Federalist (and conversely Federalist) papers to understand both the warnings and assurances regarding our judicial system. He has lost touch with true constitutional intent.

Republican democracy yields to the sense and will of our people. Not to a bunch of oligarchs in black robes who find themselves to be kings and conquerors royally presiding over the very people they are supposed to serve.

One cannot invent constitutionally sound pillars of democracy from parochial minority whims. That’s called farcical tyranny. Its propagators are destroying our republic from the inside out.

What was that you called Ted Olson ,,, “an unfailingly nice and upstanding human being?”
From what I picked up from the Fox News interview, he came off as pompous, sanctimonious and condescending, all the qualities needed to be a lawyer in today’s world.
I wonder how his late wife, Barbara, would have reacted.

Fourteen separate Supreme Court decisions dating back over a century have identified marriage as a fundamental right. This leaves no doubt that there is, in fact, a Constitutional right to marriage.

The rational basis review (as well as intermediate and strict scrutiny) is used in equal protection claims to identify a state interest in pursuing a law. Failing a rational basis review is not accusing the people who voted for the law of being irrational. It is checking to see if there is a rational reason for the state to have that law. No evidence was put forth by the defense to show a state interest in preventing same-sex marriages, thus the law fails to pass the test.

Loving v Virginia shows us that there cannot be arbitrary restrictions on who we can marry. The argument that “everyone has the same right to marry someone within their own race” in that case fell flat for a reason. The fact that the case is based on race rather than gender or sexual orientation doesn’t matter. The equal protection clause does not have an asterisk stating, “Only applies in cases of racial discrimination.” Trying to pick and choose who the 14th Amendment applies to is contrary to its purpose.

Sexual orientation, at the very least, qualifies for quasi-suspect status. They have a history of discrimination, they are a minority, and they possess an immutable characteristic. Their political powerlessness is questionable, but this is the only criteria which is even arguable.

The slippery slope argument ignores the fact that there are state interests in preventing other sorts of marriage; laws against marrying minors, for instance, would survive a rational basis review on the grounds that a child cannot give legal consent, and too much potential for abuse exists. On the other hand, no one has articulated a state interest in preventing a same-sex marriage.

Long story short: There is a fundamental right to marriage. Loving v Virginia nullifies the argument that a homosexual’s right to marry someone of the opposite sex is enough. No state interest was put forward in favor of preventing same-sex marriages. If there actually is a state interest, then you should probably be arguing against Charles Cooper’s incompetence for failing to argue it rather than castigating Ted Olson for fighting for a cause he believes in.

The fact that anyone is surprised about this outcome shocks me.

Because either way it will be a win for traditional marriage. Even if Olson wins, it will just cause a huge backlash and maybe the passage of a constitutional amendment. This might even be the most likely route for successful passage of an amendment, which could end prospects for gay marriage indefinitely.

The worst case may be that the Ninth Circuit affirms the case and then SCOTUS just doesn’t hear it. That would be troublesome.

Lets be honest,almost everything is subject to the medievel guild of pharisees known as “the bar”. I don’t think the legal beagles give a rats behind about homosexual “marriage” (other than viewing the vast new market for pre-nups, divorces and pour over trusts it will create) but they do want to subordinate the few shreds of popular sovereinty left to their rule and taking on something like marriage is the just the grand finale.

There’s very little we can do, unfortunately. Law schools are instruments of indoctrination and the JD has become the prefered credential of would be petty and grand tyrants (Barack Obama, Clintons) , and philosopher kings (likeTed Olsen). It is also a pretentious to treat a legal degee as a doctorate, given that nobody would hire a graduate without any experience and until just over a century ago, the practice of law was a craft learned through practice. Like most post-secondary education, the law school bloats the egos of its students, if for nothing else to ensure the steady supply of tution dollars. Lawyersa write laws, enforce laws, interpret laws-and make little pretense that they see anyone outside their coven as worthy of expressing an opinion.

I’m sick of seeing everything subordinated to what is little more than a racketeering organization masquerading as the sole qualified guardian of civic order.

I don’t give a rat’s *ss that Olsen is a “an unfailingly nice and upstanding human being by all accounts”. He has sold his soul to the dark side. He needs to be disregarded and defeated, period. This is a (culture) war and I’m not interested in noting the agreeability of the opponent. The constitution provides for the Congress to define the jurisdiction of the courts, but since Congress is owned by the bar, and they’ll take out any President that would treat their apparatus as Jackson (the court has opined, now let it rule) or Lincoln, who told Roger Taney (of Dred Scott infamy) that interference with the duties of the Presidency (as COC) would result in a warrant bering issued for Taney’s arrest I hold litrtle hope that we will ever be free of this cabal.

What if 52% of the people in [insert name of your favorite liberal state] passed a law forbidding the rights of marriage to all registered users of RedState? Would everyone sit back and say “well the people have spoken”?

After all, the right to register on a website without consequence is not a right specifically granted by the Constitution. You definitely cannot argue that the drafters of the 14th Amendment had RedState in mind when they wrote the due process clause. “RedState user” is not a protected class within society. Registering on RedState is most certainly a choice. Such a law might not technically violate your right to free speech or free press because you are still free to register and comment all you want. It would not violate your right to peacefully assemble because a) you are not assembling in the way the Framers would have defined it when you are online, and b) you are still free to visit the site and post all you want. If I were a lawyer I could probably go on…but I’m not and I think I made my point.

I hope that you would (lawfully) fight such a gross injustice and violation of your rights. And regardless of whether you like me or I like you…I would stand and fight alongside you.

Once upon a time, there you used to common sense used to change or reinforce laws, but thanks to our liberalized graduate education system, play on words trumps common sense.

What goes with the same sex partnerships to be elevated to the age old common sense definition of marriage, goes with the building of the Cordoba house mosque on the grounds where Muslims to glorify Allah, murdered 3000 innocent people.

It doesn’t matter how the Constitution is perverted to destroy the fabric of our democratic Republic, common sense cannot be altered from the rational being.

Homosexuals may have won the battle, but the war will just get fiercer after this.

Ted Olson used his God given intellect to sell out to the machinations of Satan, and eventually this will bring destruction, not only unto himself, but on those whom he unwisely defended in their perverse desire to hurt the many who so far treated them with tolerance, as well.

The sad case is that most rulings that make up the law of the land are cases of judicial activism decisions. 230 years of them. The only real differences are those activisms that are liked verses those that are not. States rights has died a slow and agonizing death. The experiment of individual states has been co-opted by the black robed elites.

Maybe I’m missing something, but, after this recent ruling, gays on the court steps started exchanging vows.
Well, if gay marriage is still at that time technically not recognized until there is a ruling on the appeal, then why are these people exchanging vows?
Unless, that was never the true desired outcome?
So, they have basically validated everything people told them.
If you wan to commit yourself to each other or whatever you have affections for, then go ahead.
They clearly do not need our permission.

on FNS was disappointing. Seems to me his argument depended upon a redefinition of Marriage. He says a ban takes away the right of a gay to marry- but wait marriage is a union between a man and a woman and that right is available to gays as well. They say they want the benefits of marrige but a same sex relationship but that is what civil unions are for. So what do they want? Apparently they want to redefine marriage. Why, to what purpose? Who says a judge or judicial fiat can change the definition that has been set by society for many years? This is up to the people to decide. If the court decides for Olsons team, then what? Where does a changing definition stop? We may need to coin a new phrase to define a union between a man and a woman. Then what? This is an area best left to the people to decide, not the judicial branch. (By the way, I reject the notion that “gay marriage” is a human right.)