Judge Expected to Make Decision Later This Summer
BY DMITRY RASHNITSOV
The lawsuit against California’s Proposition 8, which amended the state constitution in 2008 to re-ban same-sex marriage, finished up in United States District Court in San Francisco last week after more than nine months in the courts.
The lawyer for the group suing the state argued that Prop 8 violates the U.S. Constitution’s equal-protection clause by creating separate classes of people with different laws for each.
“The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly situated Californians,” said Attorney Ted Olson. “Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized and second-rate. Their state has stigmatized them as unworthy of marriage, different and less respected. … There is not a compelling governmental interest to put the plaintiffs in a class like this and take away what the Supreme Court has called a fundamental right, a right of liberty, privacy, association, intimacy and autonomy.”
Olson went on to argue that the law was incredibly discriminatory.
“The evidence is overwhelming that it imposes great social harm on individuals who are our equals,” Olson said. They are members of our society. They pay their taxes. They want to form a household. They want to raise their children in happiness and in the same way that their neighbors do.”
Pro-Prop 8 lawyer Charles Cooper, in his closing argument, said that “the central purpose of marriage in virtually all societies and at all times has been to channel potentially procreative sexual relationships into enduring stable unions to increase the likelihood that any offspring will be raised by the man and woman who brought them into the world.”
“The right to marry is bound up with and proceeds from the fundamental nature and its fundamental purpose relating to procreation and the existence and survival of the human race,” he said. “So it is itself, by definition, the right of a man to marry a woman, and vice versa. That is — that is the right.”
Cooper also argued that sexual orientation is not fixed, referring to “its amorphous, effectively indefinable, at least consistently, nature, and the simple fact that it is not immutable (or) an accident of birth.”
“Sexual orientation does change,” he said. “It does change over time. And it apparently changes especially in women.”
No cameras were allowed in the courtroom during the trial because the anti-gay lawyers feared that witnesses would not be able to speak their mind freely if they knew that the proceedings would be shown on television.
Experts expect the judge to issue his ruling sometime by the end of this summer. Whichever side loses will most likely appeal the decision to the next highest court, and at some point this case may end up in the Supreme Court.
When Cooper wrapped up his closing argument, Olson spoke again.
“Mr. Cooper talks about procreation as the fundamental basis for marriage,” Olson said. “Well, don’t you have to prove that Proposition 8 does something to protect procreation? (The U.S. Supreme Court has said that) ‘under the lowest standard of review, you have to prove that you have a legitimate interest and that the object’ — Proposition 8 in this case — ‘advances that legitimate interest.’”
“So how does preventing same-sex couples from getting married advance the interest or protect the interest of procreation?” he asked. “They are not a threat to us. What one single bit of evidence (is there) that they are a threat to the channeling (of procreation into marriage) 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.”
Olson concluded: “(Overturning) Proposition 8 isn’t changing the institution of marriage. It is correcting a restriction based upon sex and sexual orientation.”
