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Prop 8 on Trial
prop 8 on trial
June 18, 2010

By Amanda Beck

Plaintiff attorney Theodore Olson closed Perry v. Schwarzenegger on Wednesday by invoking the sacred pantheon of America’s civil rights rulings and by placing Perry, in terms more direct than ever, squarely atop that altar. Olson gave Chief Judge Vaughn Walker every reason to view Perry as a case whose facts are uniquely positioned to favor same-sex marriage and, as such, as the vessel now carrying forth perhaps the most important civil rights issue in a generation.

Olson’s closing presented a more powerful and coherent argument than the plaintiffs had mustered during January’s detailed testimony. He reduced their case to a few basic assertions: Olson said first, quite plainly, that it is “okay to be gay.” Second, that the Proposition 8 campaign was an attempt to undermine the ascent of this ideal. Third, that Proposition 8 unfairly forces gay people to sacrifice their Constitutional right to marry in order to exercise another Constitutional right – the right to engage in sexual conduct with another consenting adult. And finally, that American history and jurisprudence can no longer turn a blind eye to such unjustified prejudice.


Olson put his finger on the soul of this trial early Wednesday, when he said that he had been struck by how often its testimony had raised the simple question of whether it’s “okay to be gay.” Olson’s use of such plain language was surprising in a formal case likely destined for the nation’s highest court. Yet his words were effective at baring what the plaintiffs believe Perry is about: hypocrisy and prejudice.

Olson mentioned his client, Sandra Stier, a lesbian parent who testified that she simply wanted her children to feel “okay” about who they are and who they live with. Her own ability to marry – and her children’s ability to marry whomever they later choose – would promote those feelings, Stier said. On the other side, Proposition 8’s proponents had written in their voter information guide that “we must protect our children from learning that gay marriage is okay,” Olson said. “That was not a very subtle theme that there is something wrong, sinister, or unusual about gays,” Olson said. These pamphlets were distributed state-wide to every registered voter and betrayed the anxiety of Proposition 8 proponents, who feared “that children might think it was okay if they learned about gays getting married – like normal people,” Olson said.

Of course, in this context, the mundane word “okay” attractively reminds the court that the effects of Proposition 8 are being debated not only in oak-paneled courtrooms but also, more commonly, around modest dinner tables. The word “okay” is also a vague and, paradoxically, conclusive term. “Is it okay to be gay?” does not pose a narrow legal or cultural question that leaves gay advocates to fight the next incremental battle after this one is won. Instead, Olson’s question – and the one posed by his witnesses and the defense materials – seems to ask the larger, overarching question: “Will we accept homosexuality or not?” Any answer short of a simple “yes” exposes the kind of ambivalence and hypocrisy that Olson sought to call out on Wednesday. “This law is discriminatory,” he said, referring to Proposition 8. “The evidence is overwhelming that it imposes great social harm on individuals who are our equals. They are members of our society. They pay their taxes. They want to form a household. They want to raise their children … in the same way that their neighbors do.”


Olson was also eager to cast Perry as the next in a line of ground-breaking civil rights decisions. First, he invoked Loving v. Virginia, the landmark 1967 Supreme Court decision that struck down laws banning inter-racial marriage. Olson said that Proposition 8 discriminated on the basis of sex in the same way that the Loving laws discriminated on the basis of race.

Olson also attempted to show that marriage was a fundamental right guaranteed by the Constitution – and that courts should not force gay people to forgo this right when they choose to exercise another fundamental right – namely, engaging in sexual activity with another consenting adult. The Supreme Court has previously ruled in Lawrence v. Texas that it is one’s protected constitutional right to engage in conduct that characterizes sexual orientation, Olson said. He concluded that Proposition 8 takes the fundamental right to marry from those who are merely exercising these rights to liberty, privacy, and association in the bedroom.

Olson sought to drive home the injustice of this position by invoking 14 previous Supreme Court rulings that have alternatively described marriage as “the most important relation in life.” “The foundation of society.” “A right of privacy older than the Bill of Rights.” And “one of the liberties protected by the Due Process Clause.” As Olson thundered on, he reminded Walker that the Supreme Court has also characterized marriage as a component of liberty, privacy, association, spirituality, and autonomy. It is a right possessed by couples of different races and by people who are either in prison or delinquent in paying their child support. “It is a right of individuals, not an indulgence dispensed by the State of California,” Olson concluded. “And the right to marry … has never been conditioned on or tied to procreation.” Thus, he implied, to deny this right to same-sex couples was a constitutional crime of the greatest magnitude.

Beyond this, Olson noted similarities in the structure of Perry and other watershed civil rights cases. Perry is unusual for a constitutional case, because it has featured the testimony of 19 witnesses, including professors, doctors, and common folk, who supplemented the record of American constitutional law with their own opinions on what marriage is and what it means to be gay.  Olson compared Perry’s detailed inquiry to those conducted in Brown v. Board of Education and United States v. Virginia, which ruled that the Virginia Military Institute must either admit women or lose public funding. In each of these cases, front-line judges gathered facts that opened the eyes of American appellate courts not only to legal precedent but also to how those rulings affected everyday life. In Brown and Virginia, these uncommon trial facts were later used by the Supreme Court to justify rulings striking down discrimination. Olson said that the Perry trial had similarly developed a factual record that should allow Judge Walker – and the appellate judges that follow him – to support a plaintiffs’ decision.


That ultimately brought Olson to two of his hardest questions of the day: Why judges, and why now? Judge Walker posed these inquiries by citing Baker v. Nelson, a case that, in 1972, raised the issue of marriage for same-sex couples but was turned away by the Supreme Court. Walker wanted to know what made the issue of same-sex marriage ripe for judicial comment now. “What’s happened in the 38 years since?” Walker asked.

“A great deal,” came the answer. Here, Olson referred to developments in American Constitutional law – the decisions in Lawrence v. Texas, which struck down criminal sodomy statutes in 2003, and Romer v. Evans, which annulled an anti-gay initiative approved by Colorado voters. Olson also spoke about the idiosyncratic California initiative system, whose changed procedures have made minority voters more vulnerable to losing liberties in recent years. Combined with changes in American society and culture, Olson seemed to argue that this moment in history - and the peculiar facts of recent California electoral history - have never served up a more appropriate opportunity to examine the constitutionality of laws banning marriage for same-sex couples.


Ultimately, as something of a final insult to the defendants, Olson also harped on the language of their own expert witness, David Blankenhorn, a researcher and author whose testimony had conceded that the principle of equal human dignity should apply to gay and lesbian people. “In so far as we are a nation founded on this principle, we would be more American on the day that we permitted same-sex marriage than we were on the day before,” Blankenhorn said during the trial. He went on to admit that children raised in same-sex families would likely be better off if their parents could marry and that the gay couples themselves would be, too. “That is the proponents’ principal witness,” Olson underlined.

The testimony brought Olson back to his opening hymn: Were Americans ready to say, simply, that it was “okay to be gay?” Or would those within earshot - and eyeshot of the court record - continue to confine homosexual couples to an alternate status?

Olson derided the defendants’ position as one that insisted on maintaining the heterosexual definition of marriage simply because that is the way it has always been. “The same argument was made to Martin Luther King, and to Thurgood Marshall, and to Ruth Bader Ginsburg,” Olson said, invoking the most famous shepherds of America’s modern civil rights movement. “We’re talking about treating people equally. That’s not breaking new ground,” Olson summed up. “We’re talking about people who have the same impulses, the same drives, the same desires as all of the rest of us … Tell me how it helps the rest of the citizens of California to keep them out of the [marriage] club. It doesn’t.”

Click here for a transcript of the plaintiffs’ and defendants’ closing arguments.

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