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David Boies: Junk Science, Fear and Prejudice Were Put On Trial and Lost

Jim Burroway

August 9th, 2010

David Boies, one of plaintiff’s lawyers for the gay couples successfully challenging the constitutionality of California’s Prop 8 in Federal District Court, was on CBS’s Face The Nation yesterday morning, where he eviscerated the Family Research Council’s Tony Perkins on their “junk science.”

It’s easy to sit around in debate and throw around opinions and appeal to people’s fear and prejudice, cite studies that either don’t exist or don’t say what you say they do. In a court of law, you’ve got to come in and you’ve got to support those opinions. You’ve got to stand up under oath and cross examination.

And what we saw at trial is that it’s very easy for people who want to deprive gay and lesbian citizens the right to vote [sic]  make all sorts of statements in campaign literature or in debates where they can’t be cross examined. But when they come into court and they have to support those opinions, and they have to defend those opinions under oath and cross examination, those opinions just melt away.

And that’s what happened here. There simply wasn’t any evidence. There weren’t any of “those studies.” There weren’t any empirical studies. That’s just made up. That’s just junk science. And it’s easy to say that on television, but the witness stand is a lonely place to lie. And when you come into court, you can’t do that. And that’s what we proved. We put fear and prejudice on trial, and fear and prejudice lost.

Meanwhile, Ted Olson was on Fox New Sunday defending Judge Vaughn Walker against claims of “judicial activism.” Olson deftly defined “judicial activism” this way: “Most people use the term judicial activism to explain decisions they don’t like.”

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Olson cited the case of Reitman v. Mulkey, in which the U.S. Supreme Court struck down California’s Prop 14 of 1963 because it violated the U.S. Constitution due to its racial discrimination, despite the fact that Californians overwhelmingly supported it at the ballot box. Money quote: “Would you like Fox News’ right to free press put up to a vote?”

Also this, on conservative values: “We believe that a conservative value is stable relationships and stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage.”

Comments

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AJD
August 9th, 2010 | LINK

It’s such a huge relief to see Olson and Boies demolish the baseless arguments of the religious right, and I dare say they do a better job rhetorically than our usual advocacy groups. It helps that they’re trained and experienced attorneys, but they shoot down the likes of Perkins unflinchingly with plainly stated facts and logic rather than mere emotional appeals.

justsearching
August 9th, 2010 | LINK

Demolish is right. That was fun to watch.

VapoRob
August 9th, 2010 | LINK

You know I loved the part where Tony Perkins said ” You know I’ve had enough of lying and pretending to be nice, the truth is we’re all a bunch of homophobic racist bastards who enjoy cheating on our wives and sucking the money out of all you easy gullible followers who actually believe what we say. We know that the constitution grants equality, why else do you think we were trying to pass a constitutional amendment banning you from equality. We want you to go back into the closet and get married to the opposite sex and live out a lie, just like I did.”

Wow Tony, I never knew you felt that way.

TampaZeke
August 9th, 2010 | LINK

VapoRob, I know where you’re going and I have to agree; that was my favorite part too.

In all of our discussions and debates on this topic we should point to this statement by Tony Perkins and “quote” him word for word to support our cause.

If it’s good for the goose…right?

TampaZeke
August 9th, 2010 | LINK

Oh, and don’t forget about the part where Tony said that Christian fundamentalism is not only a threat to minority rights but also a threat to democracy itself.

Chris McCoy
August 9th, 2010 | LINK

Anyone else catch when Mr Perkins said:

There’ll be a resolution introduced in Congress this coming week when the House is pulled back in by Nancy Pelosi.
Thinly veiled threat to resurrect the Marriage Amendment?

Chris McCoy
August 9th, 2010 | LINK

Oops. Got my quote tags messed up there.

Do Over:

Anyone else catch when Mr Perkins said:

There’ll be a resolution introduced in Congress this coming week when the House is pulled back in by Nancy Pelosi.

Thinly veiled threat to resurrect the Marriage Amendment?

Matt
August 9th, 2010 | LINK

Just finished watching the Olsen piece, the guy is absolutely brilliant. That’s a blueprint for tearing down the traditional conservative arguments if there’s ever been one.

Jed B.
August 9th, 2010 | LINK

Boies and Olson have been amazing; they are two of the top lawyers in the whole country and their legal and speaking skills are unmatched.

Icing on the cake: they are also quite affectionate with each other in public, hugging and kissing each other in numerous venues (press conferences, rally). This from two older straight guys is good for our society in and of itself.

Bravo.

cd
August 9th, 2010 | LINK

Thinly veiled threat to resurrect the Marriage Amendment?

No, that wouldn’t pass. That would require 2/3 in both chambers and doesn’t have any pull on Republican voters that Republicans don’t have. (All the hating on Latinos and social democracy is doing the job just fine.)

It’s all about a non-binding sense-of-the-chamber resolution condemning Walker and the overturn of Prop 8. They’ll get about 300 votes (all the Republicans will vote for it, and all Democrats so their opponents can’t use a no vote against them in TV ads) and call it a victory. (I don’t believe for a moment that the Republican leadership cares about gay marriage one bit.)

Pintick
August 10th, 2010 | LINK

Ted Olson brought tears to my eyes. He stated his position uncompromisingly and thankfully put blame where it is due: on those who seek to harm us. And I think there’s been far too little discussion on how much harm has been done to gay people and who should atone for it.

Louis Britt
August 10th, 2010 | LINK

There’s a logical problem about this talk about discrimination and equality. Those things are for live-and-let-live kinds of rights, such as freedom of speech. Marriage has never, in all of history, been about equality, but about discrimination in favor of a man and woman adding to the stable foundation of a society, first by propagating and then by raising children. Discrimination, by the way, is actually a good thing sometime. We discriminated in favor of the elderly about health care for many years and discriminate regarding job preferences for veterans sometimes and there are other examples. The question is whether it helps society to do that in favor of a man and a woman and the answer is a resounding yes.

Timothy Kincaid
August 10th, 2010 | LINK

Well that is your opinion, Louis. But our law works differently.

You may like anti-gay discrimination, but my ancestors preferred a government in which all persons were created equal and in which any person is entitled to due process and equality under the law.

I understand that there are still quite a few countries that prefer to hold some people to have higher rights and make such decisions based on things like religion, orientation, sex, and race. Perhaps you’d be happier in one of those environments.

Priya Lynn
August 10th, 2010 | LINK

Louis marriage has never been about having children. Never in history have couples who couldn’t or didn’t want to have children been prevented from marrying.

Anti-marriage laws are destructive to same sex couples and do nothing to help opposite sex couples. Anything that harms some of societies members harms society as a whole – that is an indisputable fact.

Louis Britt
August 10th, 2010 | LINK

I can just imagine your ancestors or anyone else’s hearing about the idea of society giving benefits to people engaged in one or more of these harmful ways of life! Society’s resources should be focused more intensely than ever on supporting and honoring faithful fathers and mothers and finding ways to express disapproval of the behavior of those engaged in the alternatives. Most of those alternatives are heterosexual in nature but homosexuality is among them.

Timothy Kincaid
August 10th, 2010 | LINK

There are many societies that do just what you recommend. Perhaps you’d be happier there.

Chris McCoy
August 10th, 2010 | LINK

Louis Britt said:

Marriage has never, in all of history, been about equality, but about discrimination in favor of a man and woman adding to the stable foundation of a society, first by propagating and then by raising children.

Actually, for most of recorded history, up until the last ~100 years, marriage was about who owns what property, and who has the right to that property when the current owner dies.

For the majority of those years, women were included under the term “property,” and men had to pay other men money and/or goods (dowry) to get them to agree to take their property (daughter).

If you were so concerned about protecting the sanctity of heterosexual marriage, then you should be rallying against the number 1 cause of failed heterosexual marriages in the United States – Divorce.

Jason D
August 10th, 2010 | LINK

“I can just imagine your ancestors or anyone else’s hearing about the idea of society giving benefits to people engaged in one or more of these harmful ways of life!”

A) Our ancestors probably wouldn’t like hearing about women’s rights, nevermind blacks being free, voting, and children not being allowed to work until they’re 16 without a parent’s permission. Fallacy known as “Appeal to Ancestors” or “Appeal to Tradition” this is often a subset of “Appeal to False Authority”.

B) “Harmful ways of life” is your opinion. There is no evidence that homosexuality harms anyone. There is evidence that those with a bias against homosexuality object to it, and consider their objection an evidence of harm, but this is not a legit argument.

C) as someone who is gay, and has been out of the closet for multiple years, I keep waiting for all this mythical harm that anti-gays keep saying is part of my life. So far as I have seen, there’s been a lot of love and joy contrasted with some sadness and disappointment —but nothing that isn’t the same across the board for anyone looking for love in the modern world. The “harm” I’ve seen isn’t because of homosexuality, but rather bigoted reactions to it, but to call that a harmful part of my life would be blaming the victim, not the assailant.

Jason D
August 10th, 2010 | LINK

I always find it amazing how little they get it.

It’s not that I know I’m a sinner but reject it. I do not believe, nor see any evidence that what I am doing is wrong.
Comparison, if you will. My partner makes GREAT Chicken Marsala. Anti-gays telling me I’m doing something wrong is like telling me my partner’s Chicken Marsala is made of poisoned glass. I can see for myself it’s not true. I’ve eaten way too many times to have missed those details, and survived every encounter.

Louis, we don’t reject your reasoning because we don’t like it. We reject it because, unlike you, we know first hand it’s wrong.

Priya Lynn
August 10th, 2010 | LINK

Louis, supporting and honouring faithful fathers and mothers in no way requires dishonouring and oppressing gays. That’s one of the most absurd things about people like you – you claim you’re all about honouring fathers and mothers and supporting traditional marriage but you do nothing whatsoever to further those goals, you focus solely on attacking gays. Obviously oppressing harmless people is far more important to you than helping heterosexual marriages.

Publius
August 10th, 2010 | LINK

These interviews are great! Unfortunately, IMHO, voters are not, in general, astute enough to recognize the fallacies of the Religious “Right”. Most, it seems, never took or don’t remember the civics/government class they should have taken in high school years ago.

TampaZeke
August 10th, 2010 | LINK

I can’t answer Louis Britt any better than Mr. Boies already did.

Take it away Mr. Boise. Listen closely Mr Britt because he’s talking about YOU:

“And what we saw at trial is that it’s very easy for people who want to deprive gay and lesbian citizens the right to marriage make all sorts of statements in campaign literature or in debates [or on blog threads] where they can’t be cross examined. But when they come into court and they have to support those opinions, and they have to defend those opinions under oath and cross examination, those opinions just melt away.

And that’s what happened here. There simply wasn’t any evidence. There weren’t any of “those studies.” There weren’t any empirical studies. That’s just made up. That’s just junk science. And it’s easy to say that on television [or on blog threads] but the witness stand is a lonely place to lie. And when you come into court, you can’t do that. And that’s what we proved. We put fear and prejudice on trial, and fear and prejudice lost.”

[or on blog threads] added by me.

I would LOVE to see you on the stand making your case for marriage discrimination by spouting your junk science and lies only to be cross examined, under oath, on the record, by Boies and Olsen.

That would be more fun than a gay rodeo.

TampaZeke
August 10th, 2010 | LINK

Priya, I agree. I and my husband are loving, caring, responsible fathers but I don’t feel a lot of support for us coming from Mr. Britt.

I sure as heck don’t detect any respect.

TampaZeke
August 10th, 2010 | LINK

Wow, one of my comments is “Awaiting Moderation”?

That’s never happened before and as far as I know there’s never been a reason to moderate any of my comments.

Is this something new and are everyone’s comments moderated before being posted?

Jim Burroway
August 10th, 2010 | LINK

TampaZeke, I don’t see any of your comments in the moderation queue. Our software has been more aggressive lately than normal. My apologies.

Timothy Kincaid
August 10th, 2010 | LINK

Jim,

I saw it and OKed it. There have been quite a few lately.

Louis Britt
August 10th, 2010 | LINK

Actually, all this comments should be moderated, except for mine, because they’re promoting something that does physical and mental harm to most of those engaging in it and if it every involves marriages, draws resources away for benefits that should go to normal marriages. Sure, due process and all that, but no benefits for anyone not in a normal male-female marriage, the foundation of all social stability. Marriage equality is an oxymoron. (Come to think of it, would you grant benefits to an ox that marries a moron?)

Timothy Kincaid
August 10th, 2010 | LINK

Louis, you’re getting boring now.

Louis Britt
August 10th, 2010 | LINK

Sorry, I’ll make it more interesting, by way of explaining the harm. Human physiology makes it clear that the body was not designed to accommodate gay sex. The rectum is significantly different from the vagina with regard to suitability for penetration by a penis. The vagina has natural lubricants and is supported by a network of muscles. It can endure friction without damage and to resist the immunological actions caused by semen and sperm. In comparison, the anus is a delicate mechanism of small muscles that comprise an “exit-only” passage. With repeated trauma, friction and stretching, the sphincter loses its tone and its ability to maintain a tight seal. Consequently, anal intercourse leads to leakage of fecal material that can easily become chronic. The potential for injury is exacerbated by the fact that the intestine has only a single layer of cells separating it from highly vascular tissue, that is, blood. Therefore, any organisms that are introduced into the rectum have a much easier time establishing a foothold for infection than they would in a vagina. The single layer tissue cannot withstand the friction associated with penile penetration, resulting in traumas that expose both participants to blood, organisms in feces, and a mixing of bodily fluids.

Priya Lynn
August 10th, 2010 | LINK

Louis, every major mental and physical health organization in the States agrees that gayness is a normal, natural, and healthy variant of human sexuality and all agree that equal marriage for same sex couples is a benefit to society. Gays contribute the taxes that support marriages and are just as entitled to benefits as any other couple.

Timothy Kincaid
August 10th, 2010 | LINK

Louis,

Your cut and paste from the bogus “American College of Pediatricians” has been thoroughly debunked.

Nice try, but next time quote a legitimate source instead of an anti-gay fraud group.

And, incidentally, yep still boring

Burr
August 10th, 2010 | LINK

Link doesn’t work, Timothy.

So where’s the physiological evidence that lesbian sex is wrong?

Timothy Kincaid
August 10th, 2010 | LINK

Sorry. Fixed it.

Priya Lynn
August 10th, 2010 | LINK

And by the way Louis, the American Academy of pediatrics (you know the real one with 60,000 members instead of a handful of anti-gay people hiding behind a facade to push hate) also supports equal marriage and parenting by same sex parents.

The children of same sex parents benefit from having legally joined, socially supported married parents. By opposing that you’re opposing the well-being of children.

Louis Britt
August 10th, 2010 | LINK

That was your idea of my scientific information being debunked? There are a lot of people suffering out there because they’re encouraged to destroy themselves in this way. Their blood is on your hands. The equipment has to be used the way Mother Nature designed it or it becomes dangerous.

Timothy Kincaid
August 10th, 2010 | LINK

No, Louis, that was your source being debunked as fraudulent. They are not a reliable source for anything.

All you have are opinions. You can have them, but no one much cares what you think, Louis, because your opinions are based in animus, ignorance, and theocratic impulses.

grantdale
August 10th, 2010 | LINK

…is an oxymoron. (Come to think of it, would you grant benefits to an ox that marries a moron?)

There may well be a yomamma line in there in your case Louis but I think it’s better read as being a collision of ‘OxyContin abuse’ and ‘moron’.

Ah, the hillbilly heroin. Timothy, that may explain the ‘boring’. And unteachable.

Personally… I suspect Louis may simply be (another) one of those people who stim when they write, read, say or hear words like ‘anal’. Especially around gay people. Supporting that suspicion is the jumpsuit with a zip up the back.

I was about to add something on behalf of Emily K, but I see Burr’s beaten me to the punch. I do, however, know of at least one person who wishes “exit-only” meant what it claims. NSFW.

So many morons. So little time.
(Also what the elephant said).

Christopher™
August 10th, 2010 | LINK

I swear, for people like Louis, it’s all about the anal sex. Always. They’re creeped out by an activity that not all gay people engage in, but many heterosexuals do… and lesbians probably *never* do. (But I’m sure there’s some reason they’re dangerous to society, too.)

So, I have some questions for Mr. Britt:

1. If a married heterosexual couple engages in anal sex, would you consider their activity to be sinful and/or immoral?

2. If anal sex is as dangerous as you claim, should the government regulate it (in other words, should it be a punishable criminal offense)?

You say that the US government should encourage certain types of behaviors, so I’m curious how you believe the government should accomplish that.

Louis Britt
August 11th, 2010 | LINK

Christopher –

Thank you for your questions, which I’ll answer in order.

1. Whether hetero or homo, this is dangerous, sometimes lethal. Remember, the anus is a delicate mechanism of small muscles — an “exit-only” passage. With repeated trauma, friction and stretching, the sphincter loses its ability to maintain a tight seal. Also, the single layer tissue of the intestine cannot withstand the friction associated with penile penetration, resulting in traumas. I’ll leave it to the metephysicians to determine whether doing dangerous things is immoral.

2. No.

The government is already encouraging certain kinds of behaviors through the institution of marriage, and I think there are some benefits in the tax area that could be increased. But what the culture does and says is more important than anything the government does and says.

Jason D
August 11th, 2010 | LINK

“1. Whether hetero or homo, this is dangerous, sometimes lethal. Remember, the anus is a delicate mechanism of small muscles — an “exit-only” passage. With repeated trauma, friction and stretching, the sphincter loses its ability to maintain a tight seal.”

Got a citation for this Louis? I’ll grant you that trauma could certainly do that, but friction and stretching, not so much…because biology would dictate otherwise. If your understanding of muscles were true, everyone who does yoga should pretty much be a paralyzed pile on the floor from all that stretching and friction.

This also highlights your complete ignorance as to many things about anal sex:

1) Not all gays do it.(It’s not “gay sex” it’s anal sex because…)
2) Plenty of straights do it.
3) If you’re doing it right, there is NO TRAUMA. Anal sex, like vaginal sex, ONLY hurts when the receptive partner can’t or won’t relax, and a penetrative partner wouldn’t generally ignore that.

Jason D
August 11th, 2010 | LINK

Again, Louis, you’re trying to promote ideas and false logic to people who have first hand experience that you’re wrong.

Priya Lynn
August 11th, 2010 | LINK

Louis said “The equipment has to be used the way Mother Nature designed it or it becomes dangerous.”.

Mother nature never designed anything, the “equipment” evolved and throughout nature evolved features are used for whatever activity they fortuitously can be.

Christopher said “I swear, for people like Louis, it’s all about the anal sex.”.

It is. People like Louis try to put on this facade about “protecting” marriage and supporting heterosexual unions but they do nothing whatsoever to advance that, all they do is to try to stop gayness because they associate it with anal sex.

Louis millions of monogamous gays have been having anal sex for entire lifetimes with no ill effects. Every major mental and physical health organization agrees that gayness is a normal, natural, and healthy variant of human sexuality. Your fringe cult of rabid homophobes is completely outside of the scientific mainstream.

Christopher
August 11th, 2010 | LINK

According to Louis, “what the culture does and says is more important than anything the government does and says.”

How is “the culture” defined, though? Is it merely the will of the majority, or is it more complicated than that?

This also raises the question of what happens to those who have a problem with homosexuality if “the culture” accepts it.

Other Fred in the UK
August 11th, 2010 | LINK

@ Louis Britt

I hate to break this to you but childbirth, particularly multiple childbirth, can have unfortunate medical complications. I’ll let you draw your own conclusions regarding motherhood.

Pintick
August 11th, 2010 | LINK

Louis, I notice that you just LOVE talking about the mechanics of gay sex, describing it in luscious detail.

Has anyone else ever noticed that? When gay bashers get really rabid, they start lovingly detailing the processes of gay sex. It would be hilarious if so many of them didn’t fantasize about brutally murdering gay people or salivate at the thought of gay people literally f*cking each other to death.

Additionally, gay bashers pretend that straight people never have anal sex.

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