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June 10, 2011 4:56 PM

Boies, Olson Video: "The freedom to marry is a constitutional right as recognized in Loving v. Virginia."

Posted by Victor Li

Gibson, Dunn & Crutcher's Theodore Olson and Boies, Schiller & Flexner's David Boies released a video on the eve of the latest round of oral arguments in their ongoing challenge of California's controversial same-sex marriage ban, Proposition 8.

Steering clear of the recent controversy surrounding District Judge Vaughn Walker, and Monday's scheduled hearing before Chief Judge James Ware of San Francisco federal district court to vacate Walker's decision on account of his sexual orientation, Olson and Boies go back to the basics in the video, emphasizing what they say is the central issue in the case: civil rights.

Boies and Olson draw a clear parallel between their case (now know as Perry v. Brown) and the landmark Supreme Court case Loving v. Virginia, which struck down state laws banning interracial marriages as unconstitutional (the case celebrates its 44th anniversary on June 12).


"Forty-four years ago, the United States Supreme Court unanimously ruled that marriage is one of the basic civil rights of man; fundamental to our very existence and survival. And that under our constitution, the freedom to marry or not marry a person of another race resides with the individual and cannot be infringed by the state," Olson says in the video, which was produced by the American Foundation for Equal Rights, the plaintiffs in the Perry case.

"The freedom to marry is a constitutional right as recognized in Loving v. Virginia," Boies says in the video. "All committed and loving Americans should be able to marry the person they love without government interference."

Olson closes by citing the words of Mildred Loving, the original plaintiff in Loving v. Virginia: "She said, 'I believe all Americans, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. That's what Loving v. Virginia and loving each other are all about.'"

Boies and Olson will be in court one day after the anniversary of Loving to argue against a motion filed by ProtectMarriage.com-Yes on 8 vacating Judge Walker's August 2010 ruling finding Proposition 8 unconstitutional. "Given that Chief Judge Walker was in a committed, long-term, same-sex relationship throughout this case (and for many years before the case commenced), it is clear that his 'impartiality might reasonably [have been] questioned' from the outset," the group wrote in its motion, citing the code of judicial ethics requiring recusal in instances where a judge could have a conflict of interest. The group also maintained that Walker's desire to marry his partner also created a conflict of interest, one that could have only been cured by unequivocally disavowing any interest in marrying his partner in California.

In response, Boies and Olson criticized ProtectMarriage for singling out Walker because of his sexual orientation. "Proponents lack any factual basis to assume that Judge Walker wishes to marry--indeed, he apparently made no effort to do so when marriage between individuals of the same sex was permitted in California in 2008--and instead rely on nothing more than the fact that he is gay, in a relationship with a person of the same sex, and recognizes in his decision the importance of marriage in American society," Boies and Olson wrote in their response opposing ProtectMarriage's motion to vacate the ruling.

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