Tuesday, June 02, 2009

The Elegance of Lawyering

Lawyer bashing is great fun; everybody hates lawyers because they sue on behalf of clumsy people who spill their coffee, and they get criminals off to walk the streets and all that. They also defend our freedoms, and they do it in very powerful and elegant ways. I am an admirer of the use of language, and there is sheer poetry in listening to a good lawyer argue the law. Their ability to phrase “this is what this law means” and “this would be the effect of such a ruling” can rival the elegance of a poet laureate.

That’s one of the reasons I read Glenn Greenwald on a regular basis, by the way. Even when he is not arguing legalities, he is a lawyer, and he uses language and makes his arguments really well.

Ted Olson and David Boise are preparing a case to go before the Supreme Court in defense of same sex marriage, and they were interviewed on Hardball the other day. The clip is not included on MSNBC’s website, and I wish it were because the lawyers’ words would be so much more effective if you could hear them. Since you cannot, I’m going to make an exception to my usual rule of avoiding long quotes so you can read their words. After the jump, emphasis added by me.

MATTHEWS: Let me get back to Ted. Could a state argue effectively that although the rights should be equal, the word marriage should apply only to male/female relationships? Because it means something under our language, that it has a particular linguistic meaning, marriage, and the states have a right to preserve that meaning?

OLSON: In fact, that‘s essentially what California does. They have something called domestic partnerships, which provides many of the same rights as marriage. What if we were to tell individuals after coming to this country and taking the test and becoming citizens—what if we told them you‘re from Japan, you can vote, you can do all the other things that individuals can do who are citizens, but we are not going to allow you to use the word citizen, because you came from another country, because you are Japanese or you are Mexican or something like that. That would be discrimination on an unacceptable basis.

And that‘s what we have here. We‘re saying that we don‘t mind if you live together. We don‘t mind if you have the other relationships that exist in marriage. We just don‘t want you, because of your sexual orientation, to use that word marriage. We think that‘s unconstitutional. And I can‘t say it better than David did.

There follows some discussion about not forcing the issue through a court decision, but rather allowing it to evolve through individual state decisions. The two lawyers very elegantly point out that interracial marriage, which is widely accepted today, began with a Supreme Court decision, as did the Civil Rights Act itself. They say, beautifully and, I think quite correctly, that movements need to be kick started.

They also say, and I think this is a key point, that civil rights are not something that are an issue upon which the people should be voting. Civil rights are rights, and it is entirely proper, indeed mandated, that a court should declare them to be so.

OLSON: That case that David mentioned, Loving versus Virginia, involving interracial marriage, at that point in time in 1967, it was accepted that states could prohibit interracial marriage. That didn‘t stop the Supreme Court from rendering the decision that said that that was unconstitutional. And people now think that that would be crazy to say that we couldn‘t allow people of different races to marry.

We‘re asking—we would be saying, Chris, to someone who has a Constitutional right to marry, wait a few years until 50 states approve that. Go stand in the back of the line, and wait until the political process goes through its forms, and people vote to give you your Constitutional rights.

You don‘t take your Constitutional rights to the ballot box. They‘re protected by the Constitution. That is why we have a Constitution, and that‘s why we have courts.

BOIES: Remember also that we wouldn‘t have had the Civil Rights Act without Brown against Board of Education. The Supreme Court had to step in and start that process. After that process was started, we had important legislative accomplishments. But the Supreme Court has been in the forefront of establishing fundamental rights for a long time.

When the subject was introduced I was lukewarm to the idea of a Supreme Court test, fearing that it might harm popular opinion, but by the time these two men were finished arguing their case, I was completely sold that they should pursue it.

No comments:

Post a Comment