DriveThru – Get What You Need

I agree wholeheartedly with Jenny’s analysis of David Boies’ recent column. I wanted to add my two cents concerning his legal analysis. I was expecting something new and challenging from someone of his stature. Instead we got the same old re-treads of arguments that wouldn’t cut it in a high school debate.

I expected him to perhaps analyze and attack any or all of the arguments for one man, one woman marriage that have passed the “rational basis” test in state courts from New York to Washington state. Instead he set up an argument that no one, in any of the marriage cases in any state, has made – the argument Jenny lampooned in her post.

He then creates his “constitutional” argument, which goes something like this: Marriage is defined as the union of two people. Marriage is a fundamental civil right. Since same-sex marriage is about two people, then same-sex marriage is a fundamental civil right, yada yada.  But Boies’ “two people” argument cleverly assumes the answer he’s supposed to be arguing for, that the heterosexual nature of marriage is irrelevant to the legal and constitutional discussion.

Boies neglects to mention that in every marriage case the Supreme Court has decided, the make-up of the relationship was always, always one man and one woman. Even the Loving v. Virginia case he mentions in passing declared that marriage was “fundamental to our very existence and survival.” How same-sex “marriage” can fit that description, he doesn’t explain.

I was expecting something better from Boies – at least a slogan or something.

UPDATE: If I had read Professor Franck’s takedown of Boies’ article first, I could have simply said “amen” and linked to it.