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Tuesday, January 12, 2010

The Big Court Case

It's about your right to exist.  To exist as a free and equal human being like every other mother's son.  Life, liberty, and the pursuit of happiness - you know, all those things you thought you were buying into when you said the Pledge of Allegiance every morning in school?  It's about whether you are as good as anyone else - or just a misfit, a reject in the scheme of things.

Perry v. Schwarzenegger commenced yesterday in the United States District Court for the Northern District of California, and you should pay attention to it, fellas, because either way it goes, it is sure to have a huge effect on your life for many years to come.

In a nutshell:  The case seeks to invalidate Prop 8 out in California on these grounds:
  • Violates the Equal Protection Clause of the Fourteenth Amendment. ["no state shall . . . deny to any person within its jurisdiction the equal protection of the laws".]
  • Violates the Due Process Clause by impinging on fundamental liberties.  ["No person shall be . . . deprived of life, liberty, or property, without due process of law"]
  • Singles out gays and lesbians for a disfavored legal status, thereby creating a category of “second-class citizens.”
  • Discriminates on the basis of gender.
  • Discriminates on the basis of sexual orientation.
California Supreme Court Upholds Ban on Gay MarriageTheodore Olson and David Boies, the attorneys for the two California couples who are plaintiffs in this case, are determined to take the case all the way to the U. S. Supreme Court if necessary.  Many gay-rights groups have criticized the case as being inopportune:  a victory would, of course, require California and perhaps other states to extend marriage to same-sex couples; but a loss in the Supreme Court would set us back a long, long time, as did Bowers v. Hardwick in 1986, when the Supremes ruled 5-4 that the Constitution did not confer "a fundamental right upon homosexuals to engage in sodomy."

Thus, sodomy laws in thirteen states remained in effect in 24 states at that time; not until seventeen years later, in 2003, when the Court reversed itself in Lawrence v. Texas, were sodomy laws invalidated throughout the country; 13 states still had sodomy laws at that time.  In fact, the law is still part of Texas statutes, though now unenforceable; the Texas Legislature has never seen fit to remove the law, which is still on the books here.

Thus, many who are well-versed in the legal aspects of civil rights and same-sex marriage fear that an unfavorable Supreme Court decision could set our cause back for many years to come.  It is a truism that the Supremes rarely get too far ahead of public opinion or state laws; at the time of the famous Loving v. Virginia decision in 1967, striking down bans on interracial marriage, only about 15 states still prohibited it.

So we'll see how this all shakes out; keep your fingers crossed, fellas, it's bound to be a momentous decision either way it goes, first in the district court, then at the Supreme Court.

On a personal note:  your Head Trucker was not as politically aware then as he is now, but I remember vividly the news of the Bowers decision back in June of 1986.  At the time I was dating a really hot guy from Birmingham, and we were having a fun vacation in Atlanta, going to the theater and fancy restaurants.  We organized our own little two-man protest against the decision by committing sodomy frequently and vocally in our room on the 17th floor of the Marriott downtown, night and day.

Didn't have any effect on the Court's decision.  But hell, nobody ever had a better time protesting than we did that weekend.  I tell you what.

If you want to read it - and it is very worthwhile reading - here is Ted Olson's opening argument in the case:
This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law.

Bork Discusses Supreme Court Nomination ProcessThe Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”

As the witnesses in this case will elaborate, marriage is central to life in America. It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union. It is the building block of family, neighborhood and community. The California Supreme Court has declared that the right to marry is of “central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society.”

Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.
Continued after the jump . . .

In May of 2008, the California Supreme Court concluded that under this State’s Constitution, the right to marry a person of one’s choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that decision with Proposition 8, amending the State’s Constitution and, on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to equality and due process under our Constitution. They are in deeply committed, intimate, and longstanding relationships. They want to marry the person they love; to enter into that “most important relation in life”; to share their dreams with their partners; and to confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of individuals to marry a same-sex partner relegated those individuals to “second class” citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.



Plaintiffs will present evidence from leading experts, representing some of the finest academic institutions in this country and the world, who will reinforce what the highest courts of California and the United States have already repeatedly said about the importance of marriage in society and the significant benefits that marriage confers on couples, their families, and the community. Proponents cannot dispute these basic facts.

While marriage has been a revered and important institution throughout the history of this country and this State, it has also evolved to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past. Marriage laws that disadvantaged women or people of disfavored race or ethnicity have been eliminated. These changes have come from legislatures and the courts. Far from harming the institution of marriage, the elimination of discriminatory restrictions on marriage has strengthened the institution, its vitality, and its importance in American society today.



Proposition 8 had a simple, straightforward, and devastating purpose: to withdraw from gay and lesbian people like the Plaintiffs their previously recognized constitutional right to marry. The official title of the ballot measure said it all: “Eliminates Right of Same-Sex Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a “domestic partnership.” That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because they are prevented from marrying. And they will describe how demeaning and insulting it can be to be told that they remain free to marry—as long, that is, that they marry someone of the opposite sex instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians to “domestic partnerships” is to inflict upon them badges of inferiority that forever stigmatize their loving relationships as different, separate, unequal, and less worthy—something akin to a commercial venture, not a loving union. Indeed, the proponents of Proposition 8 acknowledge that domestic partnerships are not the same as traditional marriage. Proponents proudly proclaim that, under Proposition 8, the “unique and highly favorable imprimatur” of marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave psychological and physical harms to gay men and lesbians and their families. It increases the likelihood that they will experience discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s long and painful history of discrimination and prejudice against gay and lesbian individuals. They have been classified as degenerates, targeted by police, harassed in the workplace, censored, demonized, fired from government jobs, excluded from our armed forces, arrested for their private sexual conduct, and repeatedly stripped of their fundamental rights by popular vote. Although progress has occurred, the roots of discrimination run deep and its impacts spread wide.



Proposition 8 singles out gay and lesbian individuals alone for exclusion from the institution of marriage. In California, even convicted murderers and child abusers enjoy the freedom to marry. As the evidence clearly establishes, this discrimination has been placed in California’s Constitution even though its victims are, and always have been, fully contributing members of our society. And it excludes gay men and lesbians from the institution of marriage even though the characteristic for which they are targeted—their sexual orientation—like race, sex, and ethnicity, is a fundamental aspect of their identity that they did not choose for themselves and, as the California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision to eliminate the fundamental right to marry for a segment of its citizens. And its chief legal officer, the Attorney General, admits that none exists. And the evidence will show that each of the rationalizations for Proposition 8 invented by its Proponents is wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8 permits marriage by persons who are unable or have no intention of producing children. Indeed, the institution of civil marriage in this country has never been tied to the procreative capacity of those seeking to marry.

Proposition 8 has no rational relation to the parenting of children because same-sex couples and opposite sex couples are equally permitted to have and raise children in California. The evidence in this case will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring and effective parents as heterosexuals. The quality of a parent is not measured by gender but the content of the heart.

And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples. Needless to say, guesswork and speculation is not an adequate justification for discrimination. In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.

When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry. Parents were urged to “protect our children” from that presumably pernicious viewpoint.

At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination. Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples. It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

It is unconstitutional.


TomS said...


Thank you for posting Ted Olson's opening statement on your site. I have thought a lot about this case, even wrote a few lines last night. This helps clarify the issues.
I have a lot of anxiety about the outcome.

Stan said...

It will eventually go to the surpremem court I think. What the outcome will be there is any one's guess what with Bush's appointees all conservative and religious fundamentalists all there.

Russ Manley said...

Well it's a big question, whether this will lead to a Dred Scott kind of decision or one like Brown v. Board, as Sebastian has said at sufferthearrows. Guess we'll just have to keep our fingers crossed.

It's very interesting though, that Olson is a big time Republican, I will blog about that some.

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