8/14/2019 The Dangerous Olsen and Boies Precedent

1/2

Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-92782007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.

The Dangerous Olsen

and Boies Precedent

ByJennifer Roback Morse

This article was first printed at

Mercatornet.com on January 9, 2010.

Two high-profile lawyers are challenging

California's constitutional ban on gay

marriage.

California's high-profile federal lawsuitagainst Proposition 8, which begins in courton January 11, appears to be about creatinga federal case for same sex marriage. But infact, much more is at stake. Lurking in theshadows of this case is a breathtaking

expansion of judicial interference withperfectly valid elections. Whatever yourviews about Proposition 8, we surely shouldbe able to agree that special interest groupscant go into court to overturn elections theydont like.

Ted Olsen and David Boies want toconvince the court that the alleged anti-gaybias of Proposition 8 supporters shouldinvalidate the election. But first, they have

to find some such bias. This is why Olsenand Boies sought the trial courts permissionto demand confidential campaigndocuments. They want free reign torummage around through the Prop 8campaigns computers and filing cabinets,looking for evidence of this supposed

meanness. The trial judge had ruled thatProp 8 proponents had no First Amendmentprivilege, and therefore had to hand over allcommunications among members of thecampaign and their contractors.

The Ninth Circuit Court issued a preliminaryorder against the enforcement of theseoutrageous demands. While this is awelcome development, it is only atemporary reprieve for the integrity of theelectoral process. The Ninth Circuit shouldcompletely overrule the trial court.

I happened to know about this because Ireceived a subpoena from Boies office. Iwas a consultant to the Prop 8 campaign. Ihave not the slightest concern that anyonewill find any evidence of hatred hidden inmy correspondence. My views are all overthe internet. It is the pettiness of Olsen andBoies I find revolting. Out of over US$40million spent by the Yes on 8 campaign, Iwas paid a grand total of $10,000. If theycan harass little old me, nobody is safe.

But more importantly, peoples motives arecompletely irrelevant to the validity of anelection. Think about Obamas election.Some people voted for him because, aftercareful study, they agreed with all of hispolicy ideas. Others held their noses andvoted for him, even though he is not nearlyfar enough to the left for their liking. Somewanted to see a black man as president.Some no doubt voted for him because theylike his wife, or because Oprah told them to.Amongst the millions of people who votedfor Obama, were surely some who hate

http://ruthinstitute.org/pages/DrJBio.htmlhttp://ruthinstitute.org/pages/DrJBio.htmlhttp://ruthinstitute.org/pages/DrJBio.html

8/14/2019 The Dangerous Olsen and Boies Precedent

2/2

Dr. Jennifer Roback Morse 663 S. Rancho Santa Fe Road Suite 222 San Marcos CA 92078www.jennifer-roback-morse.com email: drj@jennifer-roback-morse.com 760/295-92782007 No part of this document may be reproduced or disseminated in any way without the expressed written consent of theRuth Institute.

white people and others who have a visceral,irrational hatred of Republicans.

None of this has the slightest relevance tothe legality of Obamas election. Themotives of the voters, no matter how venalor exalted, no matter how petty or profound,are completely immaterial. Obama won in alegitimate election, with exactly the samepercentage of the vote that Proposition 8had: 52% to 48%. No court in the landshould have the authority to look over theshoulders of campaign managers and votersto see if their motives pass some ideologicallitmus test.

The motives of the seven millionCalifornians who voted Yes on 8 areirrelevant. The election was about adding 14words to the California Constitution. Theentire state of California knew perfectly wellwhat those words were. The point of thecampaign was to discuss the likely impact ofthose words. Olsen and Boies dont likewhat the voters decided. Sorry. Self-government is about abiding by the resultsof lawful elections, whether you like theoutcome or not.

Political professionals of all parties andpersuasions should be completely outragedby this judicial foray into mind-reading. Therules you create against your opponent todaycan be used against you tomorrow.Everyone involved in politics, as aprofessional, spectator, or voter, has a stakein the outcome of this foray into legallysanctioned harassment. The Ninth Circuitshould protect the integrity of the electoral

process by completely overturning the trialcourts ruling.

And no one, gay or straight, left or right,Republican or Democrat, should support theOlsen and Boies nonsense.

Jennifer Roback Morse, Ph.D. is the

Founder and President of the Ruth Institute,

a project of the National Organization forMarriage. She is also the author ofLove and

Economics: It Takes a Family to Raise a

Village andSmart Sex: Finding Life-LongLove in a Hook-Up World.

This article is published byJennifer Roback Morse,and MercatorNet.com

under a Creative Commons license. Youmay republish it or translate it free of chargewith attribution for non-commercialpurposes followingthese guidelines. If youteach at a university we ask that yourdepartment make a donation. Commercialmedia must contact us for permission andfees. Some articles on this site are publishedunder different terms.

http://ruthinstitute.org/pages/DrJBio.htmlhttp://ruthinstitute.org/http://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://www.mercatornet.com/info/copyright_and_syndicationhttp://www.mercatornet.com/info/copyright_and_syndicationhttp://www.mercatornet.com/info/copyright_and_syndicationhttp://www.mercatornet.com/articles/view/the_dangerous_olsen_and_boies_precedent/http://www.mercatornet.com/articles/view/the_dangerous_olsen_and_boies_precedent/http://www.mercatornet.com/info/copyright_and_syndicationhttp://www.kintera.org/site/apps/ka/ec/category.asp?c=gpILKXOAJqG&b=5539911&en=imLUIaMQIiJ0IaNQIfL0LpNaIqLVIgNZJdITL8MWLjJ2JvKhttp://ruthinstitute.org/pages/DrJBio.htmlhttp://ruthinstitute.org/