Read This.

I’ve just finished reading the introduction of Olson and Boies’ Supreme Court brief against Prop 8. I’m so certain you’d love it that I’m reprinting the whole section here. For readability’s sake I’ve removed all but two of the legal citations. You can find those in the original.

This case is about marriage, “the most important relation in life,” a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.

This case is also about equality. After a $40 million political campaign during which voters were urged to “protect our children” from exposure to the notion that “gay marriage is okay,” and “the same as traditional marriage,” and thus deserving of equal dignity and respect, Proposition 8 engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages. Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians—and especially their children— “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s interest; it makes no sense to speak of an individual’s right to marry.

Proponents view this case as a referendum on whether the institution of marriage should exist in the first place, focusing almost exclusively on why it makes sense for the States to grant heterosexuals the right to marry. But this case is not about whether marriage should be abolished or diminished. Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.”

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples.

The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic self-governance,” can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off-limits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

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9 comments to Read This.

  • 1
    Spunky says:

    This is probably the single, best, most comprehensive statement of the case for gay marriage in existence (sorry, Rob :-) ). If this took 1,000 hours for Olson and Boies to write this, then that would be a bargain. Congratulations to both men (and whoever else edited this fine document) for their tremendous work. Let’s hope they continue this hot streak when making their arguments.
    A part of me hates to do this, but I feel it’s only fair: here is a link to the Supreme Court brief filed by the defense (Pugno, Nimocks, and Cooper). ( Click on the first link (PDF warning) and read pages 20-26. It is also very well-written and makes several good (although I believe mostly irrelevant and unfounded) arguments.
    Of course, if this is not acceptable, please remove or edit my comment.

  • 2
    NastyAlaskan says:

    Spunky- I think it’s fair to link to it, and I doubt Rob would disagree. 
    After all, our belief in marriage equality should be based on the greater accuracy, quality, and morality of the arguments for it.  This is a judgment call we wouldn’t be able to make if we never compared them to the opposition’s arguments.  And frankly, I’m not threatened by the arguments they have in their arsenal and I don’t think we have much to lose by exposing people to them (so long as they’re exposed to our arguments as well).

    My guess is that the only reason Rob didn’t link to it is because he just wanted this blog post to show how eloquent and poignant the arguments for marriage equality are when looked at from this “big picture” angle.

  • 3
    robtish says:

    Folks, it’s perfectly fine to link to opposition materials. The whole point of this blog is that we need to be able to deal with them.

  • 4

    […] The text of Olson and Boies’ introduction, with most of the legal citations omitted to make it more readable, is below. Credit for this edit of the text belongs to Rob Tisinai of the excellent blog Waking Up Now. […]

  • 5
    candide001 says:

    scalia:  the constitution is dead, dead, dead.  it doesn’t say anything about marriage much less homosexual marriage and like me the founding fathers thought homosexuality was against nature and immoral.  next case. please.
    thomas:  zzzzzzzzzzzzzzzz

  • 6
    Chris M says:

    I love the whole brief, and love how they conclude: “This badge of inferiority, separateness, and inequality must be extinguished. When it is, America will be closer to fulfilling the aspirations of all its citizens.”
    Thank you Olson and Boies! I am finally feeling more optimistic.

  • 7
    clayton says:

    @6  I must respectfully disagree with your opinion about the conclusion.  A badge is not a flame, and therefore cannot be extinguished.  They have themselves a serious case of mixed metaphor.

  • 8
    Regan DuCasse says:

      The Constitution and Bill of Rights and their writers, didn’t anticipate many things in their time. And they anticipated several. Like the fact that the country would expand and it’s people progress. Public education and those freedoms involving religion and so on, would be a part of that social progress that would be inclusive without having to be EXPLICIT in those documents.
    ‘ALL men…’ being endowed by their Creator with certain inalienable rights.
        The writers and framers of those documents didn’t anticipate the freeing of slaves, nor their ability to be equal to dominant whites, women voting and attending the same universities and military academies as their male counterparts, but it happened.
          And because gay people are part of not just the national fabric of the nation, but the fabric of ALL mankind as in ALL men, it doesn’t have to be explicit in the Constitution that as heterosexuals marry someone of their compatible sexual orientation, since there IS a category of such. Then it’s only appropriate that gay people marry someone of their same orientation. In this ALL people are equal and equally participating in the responsibilities of citizenship, with that are guaranteed rights and freedoms.
    Were I standing before SCOTUS, this is how I would frame my own argument. Because so far, those defending discrimination, are defending what no one is discriminated for in the first place. Or there is no need to discriminate against them. And not marriage, nor it’s traditions or married people, are protected by discriminating exclusively against gay citizens.

  • 9
    Spunky says:

    If we’re being a little lenient with the meaning of “extinguish,” then the metaphor still works.

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