Ted Olson's opening statement in Prop 8 trial

From the Equal Rights Foundation:

Text of Ted Olson’s Opening Statement in Prop. 8 Trial – As Prepared
JANUARY 11, 2010

The federal trial over the unconstitutionality of Proposition 8 began today with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

After the opening statement David Boies gave the direct examination of Jeff Zarrillo and Paul Katami.

OPENING STATEMENT
(as prepared)

This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law.

The 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.
___________________________________

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.

I

MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE

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.

II

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND THEIR COMMUNITIES

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.

III

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON

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.

Read More...

City upon a hill

Our politicians, and many American religious leaders, need to remember that even back in the 1600's American pilgrims realized the world was watching.

This phrase entered the American lexicon early in its history, with John Winthrop's sermon "A Model of Christian Charity," given in 1630. Winthrop warned the Puritan colonists of New England, who were to found the Massachusetts Bay Colony that their new community would be a "city upon a hill," watched by the world:

For we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken... we shall be made a story and a by-word throughout the world. We shall open the mouths of enemies to speak evil of the ways of God... We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us til we be consumed out of the good land whither we are a-going.

It took people a while to realize theology and politics served mankind best when they were prevented from overtly influencing one another. Unfortunately, some have reverted through ignorance to believing just the opposite. Even before Winthrop, Queen Elizabeth I in her progression and defense from Roman Catholicism famously said she did not wish to "make windows into men's hearts and secret thoughts." Granted, there were hundred of years, and much more enlightenment, before human beings stopped allowing the state to force its religion on its citizens.

That is what is so offensive with modern day American evangelical fundamentalist theocrats who argue we should force others to worship via their particular brand or flavor of religion. Even more insulting is to ignore over two hundred years of the advancement of our laws to protect individual thought, expression and even life, liberty and the pursuit of happiness. Another important concept for theocrats to remember is that the separation of church and state, when properly enforced, not only protects politics from undue religious influence, but it protects faith from politics.

Our nation has not remained stagnant, and the arc of justice has swung to protect the minority from the tyranny of the majority. Alexis de Tocqueville, of course, had it correct:

Tocqueville speculates on the future of democracy in the United States, discussing possible threats to democracy and possible dangers of democracy. These include his belief that democracy has a tendency to degenerate into "soft despotism" as well as the risk of developing a tyranny of the majority. He observed that the strong role religion played in the United States was due to its separation from the government, a separation all parties found agreeable. He contrasts this to France where there was what he perceived to be an unhealthy antagonism between democrats and the religious, which he relates to the connection between church and state.

Willful ignorance has forced us to have to refight this very issue. I just read a very disturbing example of how we have not been that "bright shining city upon a hill" when it comes to democracy. There have been numerous reports that groups of conservative American theocrats have influenced Uganda to consider passing a genocidal law against gays. This quote from an article in the Irish Times jumped out at me.

David Bahati said the Bill – which would impose severe punishment for homosexual behaviour, including the death penalty – may be amended once it comes out of committee in February in response to concerns from “a number of stakeholders”. But he predicted it would ultimately pass. “The process of coming up with the law to defend our children and traditional family values in Uganda moves on,” he said.

“There is nothing really that can discourage me from moving forward. As you know, this is the process of legislation – you get criticism. This is part of the joy of the democratic process.”

When Africans get the idea, from US citizens, that voting to remove the civil rights of gays, even to the point of killing them, is "the joys of the democratic process," then every American should hang our collective heads in shame. It is time for us to return to being that "city upon a hill" and stop allowing deliberately ignorant conservative theocrats from moving us back to the dark ages. When the majority votes on the civil rights of the minority, which has unfortunately become quite popular in the attempt to resolve the question of gay marriage, we are no longer an example of over two hundred years of evolved American jurisprudence, and our lamp of freedom is in danger of being extinguished. Read More...

FYI, if you're using Firefox the site may load oddly today

We're working with the site template to try to speed the load of the page. For some reason, this is causing problems for some Firefox browsers. Just FYI, if you're seeing the page all screwed up (likely when using Firefox). We're working on it. Only way to fix stuff is trial and error. Stay tuned. Read More...

Good update from this morning's Prop 8 court challenge in CA

Karen Ocamb has a nice summary of what happened. Read More...

NY gays: Ford is no Schumer

It seems Harold Ford just can't get any gay love. Read More...

Justice Kennedy blocked taping of Prop. 8 trial -- until at least Wednesday

Via WSJ blog, Supreme Court Justice Anthony Kennedy has ruled that there won't be video of the Prop. 8 trial today or tomorrow -- and not until Wednesday per Kennedy's order:

To permit further consideration in this Court, this order will remain in effect until Wednesday, January 13, 2010, at 4 p.m. eastern time.

The anti-gay forces are trying to prevent this coverage. They really don't want their hate exposed.

The proceeding won't be simulcast to other federal court houses for now, either. Read More...

Homophobe Harold Ford, after voting for the Federal Marriage Amendment, now is suddenly in favor of gay marriage

Homophobe former Congressman Harold Ford, who voted for the Federal Marriage Amendment when he was in the Congress - that would be the legislation that would have added anti-gay bigory to the United States Constitution - is now suddenly in favor of gay marriage. Even better, he claims he's always been in favor of fairness and equality. That would be a lie.



We're very pleased that Harold Ford claims to have had some personal epiphany that has enabled him to come out as a proud gay supporter. More believable is that Ford is just a homophobic opportunist who is willing to take any position on any issue, willing to say anything to any constituency, will to flip flop to his heart's content, in order to win the race of the day.

Folks, this guy is trouble. He's a political opportunist with a long record of homophobia, and he's willing to change his vote for the highest bidder. (He's also comes off to lots of gay people, myself included, as more than a bit self-loathing.) It's great that Harold Ford has suddenly decided that civil rights matter. And I honestly don't care what's in your heart if you vote the right way. But Ford has shown that he'll change his mind to suit the prevailing political winds of the moment. What happens if we elect Ford as Senator and he suddenly decides that it's more profitable to be anti-gay again? After all, this guy's ego is a mile wide. It would not be surprising if he wanted to run for President some day, and you'd better believe that Harold Ford's inner homophobe will reassert itself the day he decides he wants to be President.

When Harold Ford finally decides whose side he's on, he should get back to us. Read More...

In Mass., GOP homophobe running to replace Ted Kennedy -- and it's too close for comfort

While all eyes are on the Prop. 8 trial, there is an election coming up on the other side of the country: the race to replace Senator Ted Kennedy in Massachusetts. The election is next Tuesday, January 19th. It would be a travesty if Kennedy is replaced by an arch homophobe. But, that's a possibility. Recent polls shows conflicting results in the race between Democrat Martha Coakley and GOPer Scott Brown. In very blue Massachusetts, it shouldn't be close. Please donate via ActBlue to Coakley's campaign.

Attorney General Coakley is a strong ally of the LGBT community. Last July, she filed a lawsuit against DOMA. On the other hand, Brown is one of the leading anti-gay politicians in his state. He's out of synch with other GOP leaders in his state. From today's Boston Globe:

The divergent views of the three prominent GOP candidates running statewide in Massachusetts - [Charles] Baker; Christy Mihos, who is also running for governor; and state Senator Scott Brown, who is running for US Senate - are a reflection of how Republicans continue to wrestle with gay rights, and with how to balance social issues with economic ones in their political campaigns.

Baker and Mihos both support gay marriage, while Brown, who opposes it, helped efforts under former governor Mitt Romney, an outspoken opponent, to put a ban on the state ballot. Brown also won his state Senate seat in 2004 in a campaign that aired his opposition to same-sex marriage, and he has since accepted campaign contributions from activists and groups that have fought gay marriage.

Scott Brown isn't a GOP moderate on gay issues like Susan Collins and Olympia Snowe. He would fit right in with the likes of Jim DeMint, David Vitter, Jon Kyl and Mitch McConnell. He's not a moderate. He trashed gay couples who want children, saying it was "not normal" and got into a public fight with a bunch of teenagers over gay marriage.

Also, if Coakley loses, Democrats lose their 60 vote majority in the Senate. That will make it tough to pass any more progressive legislation this year (and even with the 60 vote majority, Dems were pretty bad). And, we still have the repeal of Don't Ask, Don't Tell and ENDA on the agenda (we hope they're on the agenda anyway.) Not to mention, as I wrote about on the main blog this morning, if lose the 60 votes, then the conference committee on the health care bill will be forced to accept the Senate version of the bill, no changes, no improvements. That means the meager pro-gay provisions we had in the bill will be gone. Good thing our groups and our gay members of Congress were relying on a "conference strategy" rather than simply ensuring that the House and Senate bill both had the pro-gay language.

Please donate via ActBlue to Martha Coakley's campaign. Martha Coakley's campaign website is here. Read More...

The Prop. 8 trial begins today in SF

Big day today. The trial challenging the constitutionality of Prop. 8 starts in San Francisco. The trial won't be broadcast, although videos of the proceedings will be posted on YouTube (a first for a federal case.)

Karen Ocamb's blog, LGBT POV, will have commentary provided by Jenny Pizer from Lambda Legal.

The American Foundation for Equal Rights, which brought the lawsuit and retained Ted Olson and David Boies, will be providing regular updates, including tweets from the court room at its website. AFER provided this preview of the first day via press release:

The federal trial over the unconstitutionality of Proposition 8 will begin Monday, January 11 with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case, Perry v. Schwarzenegger.

Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

This really is a historic undertaking and we're in some of the best legal hands. Read More...