Like so many of us, I spent much of the latter part of this week focused on the closing arguments of Perry v. Schwarzenegger, the federal trial that will determine the constitutionality of Prop 8. I read the questions asked by, then the answers submitted to, Judge Walker. Then, Wednesday, the actual final day of the trial, I followed intently every word from both sides, and had this overwhelming desire to tweet so many of the statements, but it was hard enough to stay on top of the almost real-time transcript provided courtesy of The American Foundation for Equal Rights (AFER,) who also provided the official transcript which I have gone through several times now, and pulled what I think are some of the best parts of the closing arguments for you to savor. I’ve added my personal thoughts after a few, in italics.
As you know, Ted Olson is the lead counsel for the plaintiffs, the pro-marriage equality side. Everyone, including Maggie Gallagher, the founder of the National Organization for Marriage, feels Olson’s work, along with David Boies, his co-counsel, was so expert we have a strong chance of winning. In fact, Maggie, already shilling for your money, said, “I expect Judge Walker will overrule Prop 8.”
With that, I give you some of Ted Olson’s best statements during Wednesday’s closing arguments. If you want to know what the other side said, read my piece at Change.org: “Gay People Cannot Be Allowed To Marry Because Straight People Cannot Be Trusted?”
And we’re off!
Olson speaking to the judge:
For example, you asked, “How does permitting same-sex couples to marry in any way diminish the procreative aspect or function of marriage, or denigrate the institution of marriage for heterosexuals?”
Lead counsel responded: “Your Honor, because it will change the institution. If the institution is deinstitutionalized,” he said, “Mr. Blankenhorn will testify that will likely lead to very real social harms, such as lower marriage rates and high rates of divorce and nonmarital cohabitation, with more children raised outside the marriage and separated from at least one of their parents.”
Then, this important tidbit, which proves animus –”hostility or ill feeling,” which, if proved was the reason for the voters’ prop 8 decision, would require the judge to overturn Prop 8.
“It is revealing, it seems to me, that the deinstitutionalization message is quite different from the thrust of the proponents’ Yes on 8 election campaign. That, in the words they put into the hands of all California voters, focused heavily on: Protect our children from somehow learning that gay marriage is okay. Protect our children from learning that gay marriage is okay.
Those are the words that the proponents put in the ballot — in the voter information guide that was given to every voter.”
Certainly, many of us saw those ads on TV: Save our children! Horrors!
“The Supreme Court has said that: Marriage is the most important relation in life. Now that’s being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons.”
Regardless of the outcome of this case, or even when — because it is when, not if — it goes to the Supreme Court, we must always remember what the Supreme Court has said about marriage. And every time someone from Maggie Gallagher’s NOM says that “gay marriage” is not a civil right, we can retort, “Neither is ‘straight marriage.’ But ‘marriage’ is.”
“[Marriage] is a right belonging to Californians, to persons. It is not a right belonging to the State of California.”
“No one aspires as a child to grow up and enter into a domestic partnership. But they do aspire as children to grow up and be married.”
“Proposition 8 discriminates on the basis of sex in the same way that the Virginia law struck down in Loving discriminated on the basis of race. They could marry whoever they want, unless that person was the wrong race.”
“So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation? They are not a threat to us.
What one single bit of evidence that they are a threat to the channeling function? If you accept that California has the right to do that in the first place. And I do not.
This is an individual constitutional right. And every Supreme Court decision says that it’s a right of persons. Not the right of California to channel those of us who live in California into certain activities or in a certain way.”
“[W]e had expert witnesses that talked about the history of marriage going far back. Not 30 years, but far back into history what marriage has always been. The Supreme Court said older than the Bill of Rights, older than our political parties. That’s not something new. It’s marriage. It’s not single-sex marriage or interracial marriage or anything like that.
Mr. Cooper says you have to accept the fact that — “First of all, you have to accept my definition. It has to be between a man and a woman. Then, if you have a marriage between a man and a man or a woman and a woman, it will change the marriage.”
Well, of course it will, because you started by defining the term that you wanted to define.”
“What we’re talking about here is allowing individuals who have the same impulses, the same drives, the same desires as all of the rest of us, to have a relationship in harmony, stability, and to form a family and a neighborhood, all of those things that the Supreme Court talked about.
And, now, tell me how it helps the rest of the citizens of California to keep them out of the club. It doesn’t.”
Indeed. It does not.
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