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<\/a><\/center><\/p>\nFor discussion, I’m posting the entire introduction to Olson and Boies’ Supreme Court brief, which is excellent. <\/p>\n
I especially like, and agree with, their point that it is the opponents of marriage equality who are “redefining marriage” with their “cramped definition of marriage as a utilitarian incentive devised by and put into service by the State.”<\/p>\n
You can read the entire brief here<\/a>. You can read the entire brief from the folks defending proposition 8 here, in pdf form<\/a>. (If you don’t have time to read the whole thing, read pages 20-26).<\/p>\n 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<\/a>.<\/p>\n This case is about marriage, \u201cthe most important relation in life,\u201d 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 <\/em>individuals\u2019 liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one\u2019s place in society; and an expression of love, emotional support, public commitment, and social status.<\/p>\n This case is also about equality. After a $40 million political campaign during which voters were urged to \u201cprotect our children\u201d from exposure to the notion that \u201cgay marriage is okay,\u201d and \u201cthe same as traditional marriage,\u201d and thus deserving of equal dignity and respect, Proposition 8 engraved into California\u2019s 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\u2019s constitution behind the stigma that gays and lesbians, and their relationships, are not \u201cokay,\u201d that their life commitments \u201care not as highly valued as opposite-sex relationships,\u201d and that gay and lesbian individuals are different, less worthy, and not equal under the law. That \u201cgenerates a feeling of inferiority\u201d among gay men and lesbians\u2014and especially their children\u2014 \u201cthat may affect their hearts and minds in a way unlikely ever to be undone.\u201d<\/a> Brown v. Bd. of Educ<\/em>., 347 U.S. 483, 494 (1954).<\/p>\n Proponents accuse Plaintiffs (repeatedly) of \u201credefining marriage.\u201d But it is Proponents who have imagined (not from any <\/em>of this Court\u2019s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State\u2014society\u2019s way of channeling heterosexual potential parents into \u201cresponsible procreation.\u201d In their 65-page brief about marriage in California, Proponents do not even mention the word \u201clove.\u201d They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court\u2019s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court\u2019s 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 \u201ceven..exist[ ] at all\u201d and \u201cthere would be no need of any institution concerned with sex.\u201d (internal quotation marks omitted). Thus, under Proponents\u2019 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 \u201cmost important relation in life.\u201d Indeed, Proponents\u2019 state-centric construct of marriage means that the State could constitutionally deny any <\/em>infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to \u201cresponsible\u201d procreation.<\/p>\n This, of course, reflects a complete \u201cfailure to appreciate the extent of the liberty at stake,\u201d 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\u2019s <\/em>interest; it makes no sense to speak of an individual\u2019s right <\/em>to marry.<\/p>\n 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 <\/em>with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it\u2014to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being \u201cmarried.\u201d<\/p>\n The only substantive question in this case is whether the State is entitled to exclude <\/em>gay men and lesbians from the institution of marriage and deprive their relationships\u2014their love\u2014of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any <\/em>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.<\/p>\n The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians\u2014and them alone\u2014and enshrine in California\u2019s Constitution that they are \u201cunequal to everyone else,\u201d that their committed relationships are ineligible for the designation \u201cmarriage,\u201d and that they are unworthy of that \u201cmost important relation in life.\u201d Neither tradition, nor fear of change, nor an \u201cinterest in democratic self-governance,\u201d 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\u2014and 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. \u201cIn respect of civil rights, all citizens are equal before the law.\u201d Plessy v. Ferguson<\/em>, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":" For discussion, I’m posting the entire introduction to Olson and Boies’ Supreme Court brief, which is excellent. I especially like, and agree with, their point that it is the opponents of marriage equality who are “redefining marriage” with their “cramped … Continue reading