Boies in the WSJ: a fundamental right to marriage

David Boies, who with Ted Olson is challenging Prop8 in federal court, wrote an op/ed in the Wall Street Journal.

The Supreme Court has repeatedly held that the right to marry the person you love is so fundamental that states cannot abridge it..... basic constitutional rights cannot depend on the willingness of the electorate in any given state to end discrimination. If we were prepared to consign minority rights to a majority vote, there would be no need for a constitution.

The ban on same-sex marriages written into the California Constitution by a 52% vote in favor of Proposition 8 is the residue of centuries of figurative and literal gay-bashing. California allows same-sex domestic partnerships that, as interpreted by the California Supreme Court, provide virtually all of the economic rights of marriage. So the ban on permitting gay and lesbian couples to actually marry is simply an attempt by the state to stigmatize a segment of its population that commits no offense other than falling in love with a disapproved partner, and asks no more of the state than to be treated equally with all other citizens.....

There are those who sincerely believe that homosexuality is inconsistent with their religion -- and the First Amendment guarantees their freedom of belief. However, the same First Amendment, as well as the Due Process and Equal Protection clauses, preclude the enshrinement of their religious-based disapproval in state law......

The argument in favor of Proposition 8 ultimately comes down to no more than the tautological assertion that a marriage is between a man and a woman. But a slogan is not a substitute for constitutional analysis. Law is about justice, not bumper stickers.

(my emphasis). Read the whole thing!