Andrew is in high tonus over Olson.
As a matter of constitutional law, I cannot believe that AS never considered the depths to which the flimsy predicate that is laid down, the state's purported interest in procreation, could be questioned.
Hell, even I came up with the China thing Andrew quotes, on my own, years ago, as a way of suggesting that those who were yelling "no strict scrutiny!!!" (ref) wouldn't be so vocal if the shoe were on the other foot, in a thought experiment in which gays were the ones denying relationship rights to non-gays.
And....and ... I take AS's admission as indicative, for both sides of the debate. One could argue that the debate has yet to coalesce on the key issues that everyone agrees - scholars agree - should make a so-called "good opinion", one way or another. People are still coming up with ideas and 'thinking it through', so it seems. Under conditions of uncertainty like that, I worry that on-the-fence Justices will err toward no progress, no change, no action - and not just by ignoring the appeal of whatever comes out of the district court, but perhaps by a smackdown.
I'm not going to trash Olson's arguments, to prove that it can be done.
Rather, my view is that these matters cannot be "solved" by argumentation alone, even though we must all go through that process.
In the end, people, even Justices, have to open their heart. That doesn't mean the issue is solely one of compassion, but that the weighing of evidence, the formation of a right judgment, requires an open heart, for most people.
Monday, January 11, 2010
Praising Boies Olson
