One Republican’s Case for Marriage Equality


Mon., Jan. 11 saw the opening arguments in a case that could, if things go well, have major implications for the struggle toward marriage equality across the nation. The case is called Perry vs. Schwarzenegger, and the idea is that Proposition 8, which passed in California in 2008, is unconstitutional. Most evolved individuals fully understand that Proposition 8 is a belligerent, discriminatory, cruel, uncivil, hypocritical, disgusting, indefensible and hate-inducing law; there remains a number of good reasons to believe that the Church of Jesus Christ of Latter-Day Saints conducted itself inappropriately, and possibly illegally, with regard to its lobbying activities in the state of California to pass the proposition into law. (All religious institutions, as suggested here, ought to remember they are tax-exempt and barred from inappropriate types of political activity. That goes for everyone and every religious area, left or right. Period.)

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As many are aware, Perry vs. Schwarzenegger is being closely watched because two political adversaries — Theodore Olson, who represented George W. Bush in the irredeemable Bush vs. Gore decision of the Supreme Court in 2000 and went on to become solicitor general, and David Boies, who represented Vice President Gore in the same irredeemable Supreme Court decision. Olson will never fully be able to remove the grotesque stain of politics that smeared Bush vs. Gore, but by working together with Boies on Perry vs. Schwarzenegger, and coming out strongly and very publicly as a conservative who believes in the legality and, indeed, the necessity of marriage equality, he is going a long way toward mending his reputation with the left.

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If you read Olson’s opening statement, in fact, it is one of the most articulate and tightly rendered arguments for marriage equality yet. The full text can be read here. These samples from the statement, however, are especially memorable:

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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.

….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.

….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.

….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.

The radical right, of course, will upbraid Olson and call him a traitor and divide their once-great Republican party still further. But Olson sees where history is going. It’s simply a matter of time.

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