01.12.2010 9:41am EST
Text of Ted Olson’s Opening Statement in Prop. 8 Trial – As Prepared
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.