Live Blog Archive
Olson: On Romer & Lawrence
Olson talks about banning racial covenants in housing. "We can discern the motives were taking away rights that existed on basis of race. Then comes Romer. Romer individuals were protected by state law on the basis of discrimination by sexual orientation. In California individuals lost the right to marry on the basis of orientation. You’ve taken away the right of redress. The only way to redress is to amend constitution. Only thing they can do is go to citizens and amend the constitution.
In each cases, rights were taken away because of orientation. [Note: Romer was about a blanket prohibition on any form of protection for orientation discrimination, not a discrete issue like marriage]
Walker: Let’s see if I can get an answer to this one. Would this case be different if California had never recognized same-sex marriage?
Olson: Different, but now it’s stronger.
Olson: Facts are stronger because there was a time that California recognized same-sex marriage, albeit for only 6 months. Minority rights are particularly vulnerable. Their rights are being . . .
Walker: What kind of a con system is it, that because of the California decision that had a shelf right of same-sex marriage, now has a greater right than if it had never existed in first place?
Olson: If were writing on a clean slate, which we might be if we were litigating in the next door state, I would be making the same arguments: You people are selecting people out on the basis of orientation, a practice that the Supreme Court says is a constitutionally protected right.
[Yes, Ted admits: I am striking down the laws in all 50 states. How can details of campaign in California matter?]
Walker: Lawrence was a criminal statute. Denial of same-sex marriage does not have any criminal sanction. No criminal penalty.
Olson: That doesn’t make any different if we are talking about—once Lawrence recognized the constitutional right to –what the court talked about is the right for individuals to “our laws and our tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, childrearing and education.” Court goes on to say “persons in a homosexual relationship may seek autonomy for these purposes.” Court was talking about private, intimate things.
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