Here is a sampling of what is being argued in court. The information may help you educate your peers as to why it is still important to be on our political leaders to keep doing the right thing.
We have all heard about the problems with California’s equal marriage movement. The fact that it had indeed passed only to be struck down by a State Constitutional amendment is pretty much common knowledge. After that the whole subject about the left coast has faded off into the media noise. This is where we as a community happen to be making a huge mistake. In one degree or the other most all the states in New England have same-sex marriage. Be they civil unions or some form or recognition as in New York, it is slowly becoming a non-issue unless it flares up at election time because some group or another attempts to overturn these rights as with the last election in Maine.
What we all need to understand and grasp is that the issue at bar in California in fact absolutely effects every single gay man and woman in the United States. Why? Because as presented, it goes to the heartland issue of constitutional rights. If these arguments pass muster and are affirmed by the U.S. Supreme Court, equal marriage becomes the law of the land and no one will ever be able to take it away. Here in Connecticut we enjoy this foundation but not to the extent that you think. Say a gay couple has been married here for twenty years and then decide to retire and move to some other state. Do you realize that your marriage may not be recognized? One of you may end up in a hospital only to be told that the state of East Cupcake does not recognize your rights and you end up sitting in the waiting room while the staff tracks down some distant third cousin to get authorizations for treatment from. This is what is at stake for all of us.
Here is a sampling of what is being argued in court. The information may help you educate your peers as to why it is still important to be on our political leaders to keep doing the right thing.
—Daniel R. Askin
“There is no rational reason for an exception to be carved out for how this fundamental right applies to gays and lesbians, just as there was no rational reason for an exception to be carved out for how this fundamental right applies to interracial couples.” – Amicus Brief of Justice Donald P. King
Earlier this month, amicus briefs were filed in support of the case against Proposition 8 led by Theodore Olson and David Boies, who were brought together by the American Foundation for Equal Rights to lead the federal Constitutional challenge to the California ballot initiative that stripped gay men and lesbians of their right to marry.
Testimony in Perry v. Schwarzenegger ended last Wednesday. Chief Judge Vaughn R. Walker has said he will reconvene the trial for closing arguments after a period during which he will analyze the evidence and testimony presented between Jan. 11 and Jan. 27.
At trial, Olson and Boies demonstrated the unconstitutionality of the initiative through the presentation of 17 witnesses and revealing cross-examination of the defendant-intervenors’ witnesses. Put simply, the case against Prop. 8 was made by our witnesses and theirs.
Comprising eminent legal scholars from Stanford, UC Berkeley, UCLA, USC, Pepperdine, Hastings, Loyola Marymount, USF, California Western, UC Davis, Whittier, Santa Clara, University of the Pacific, and Golden Gate University.
“Amici agree with both the plaintiffs and defendants in this case that marriage is a critical institution in society. Through both law and culture, marriage imparts distinctive personal, psychological, and social benefits to adults and children. Thus, any laws that deprive individuals of access to marriage raise substantial concerns regarding the promotion of family life and the well-being of adults and children. Amici support plaintiffs’ claims that there are no reasonable justifications, relevant to the purposes of family law, for depriving individuals of the opportunity to marry someone of the same sex and that Proposition 8 therefore violates plaintiffs’ rights under the Due Process and Equal Protection Clauses of the United States Constitution,” their brief states. “The legal meaning of marriage has evolved considerably since the beginning of California’s Statehood, especially with respect to such basic elements as who may marry, the roles of the spouses, the management and control of marital assets, and the duration of the marital entity. … Since Statehood, the only constant element has been the goal of facilitating the decision of two people to integrate their lives into a single entity called marriage.”
“By consigning lesbian and gay couples to a marriage substitute, the State signals that their relationships are inferior and less worthy,” the brief continues.
“Marriage is a unique local, social, and cultural status that provides advantages that cannot be matched by a domestic partnership.”
“Civil marriage is a state-created legal status.”
“Choice of partners is a critical aspect of marriage.”
“The desire to preserve a ‘traditional’ definition of marriage does not justify unequal treatment.”
“Same-sex unions and opposite-sex unions are functionally equivalent with respect to purposes of marriage.”
“The purpose of Proposition 8 was to declare same-sex couples unequal under the law to different-sex couples. California recognizes that same-sex couples are similarly situated to different-sex couples, but Proposition 8 requires that same-sex couples’ relationships be designated as unequal to the relationships of heterosexual couples who marry, thereby denying the families of same-sex couples the dignity and respect afforded different-sex couples’ families through marriage,” one brief states. “There are some things that the Equal Protection Clause prohibits so absolutely that they can be considered per se violations of the clause’s guarantee. The government may not decide that two groups of people are similarly situated with regard to the purposes of a law, but nonetheless have that law treat them differently. The government may not treat some people differently than others merely to declare them unequal. And the government may not permanently forbid itself from protecting a group of people against unequal treatment. Proposition 8 unconstitutionally does all these things.”
“Proposition 8 constitutes a per se violation of the Equal Protection Clause.”
“The unique characteristics of Proposition 8 establish that it fails even proper application of rational basis review.”
[The] “Defendants’ argument that this court should only examine whether a minority group can attract the attention of lawmakers (the Attention Test), is unworkable and runs afoul of more than 70 years of Equal Protection jurisprudence. Indeed, the Attention Test urged by Defendants would threaten the well-established protected status afforded many minorities under the Equal Protection Clause, all of whom have demonstrated a historical and present ability to get the ‘attention of lawmakers.’ A finding that the mere ability to attract the attention of lawmakers is, by itself, sufficient to prevent protected minorities from receiving heightened judicial scrutiny would eliminate suspect classifications for all persons under the Equal Protection Clause. In this respect, gay men and lesbians are no different than any other group who, in the face of societal discrimination, should be entitled to demonstrate through empirical evidence that homophobic prejudice, like racism or sexism, has curtailed their ability to rely on political processes to protect them from state actions motivated by bias, hate and prejudice,” their brief states.
“Recent legislation protecting the rights of gay men and lesbians are dwarfed by the inequalities they face daily.”
“Gay men and lesbians are underrepresented in government.”
“Gay men and lesbians are the victims of political backlash.”
“Moreover, the substantial social and psychological effects of this stigmatization are borne not only by same-sex couples and individuals, but by their children as well. … The positive benefits children accrue from being raised by civilly married parents are independent of those parents’ sexual orientation. It is the consensus view of the field of developmental psychology of children, the traits of an effective parent do not depend on the gender of that parent. This is because the factors that must affect child development … have nothing to do with parental gender or sexual orientation.”
“Depriving same-sex couples of the ability to marry has adverse effects on their children.”
“The stigma created by the state’s differential treatment of gay men and women has severe psychological and social impacts.”
“Singling our gay men and women as ineligible for the institution of marriage invites the public to discriminate against them.”
Justice King is a preeminent family law authority and has authored more family law opinions than any other appellate Justice in California history. Among his honors are the State Bar’s Family Law Judicial Officer of the Year award. The state bar has since renamed this honor the Justice Donald B. King Family Law Judicial Officer of the Year Award.
“Proposition 8 is but one example of how a majority can trample upon the fundamental rights of a disfavored minority by stoking the public’s fears and prejudices.”
“Proposition 8 is an illegitimate exercise of state power.”
“Proposition 8 was part of a continuing practice that discriminates against gays and lesbians by making constitutional protections contingent upon a majority vote.”
“Proposition 8 was an irrational expression of voter prejudice.”
“The fundamental right of marriage applies equally to same-sex and opposite-sex couples.”
“The traditional definitions of marriage do not preclude same-sex marriage.”
“Children in particular are harmed by their parents’ not being allowed to marry.”
“The right to marry per se creates benefits that should be available to same sex partners and their children.”
Several briefs which represent Jews and protestant and orthodox Christians and clergy across California summarized the following.
“No one can force clergy of any denomination to solemnize any wedding that conflicts with his or her faith tradition, and no church, synagogue or other place of worship loses its tax exempt status for refusing religious rites of marriage to citizens possessing a civil right to marry,” their brief states. “Proponents’ television ads and other materials warned that if same-sex couples may legally marry, ministers who decline to officiate will face legal liability, and their churches will lose their tax-exempt status. None of this was true. … That atheists and agnostics enjoy the same legal right to marry as those who revere marriage as a divine institution poses no threat to anyone’s religious liberty. No atheist or agnostic couple may force any church or synagogue to open its doors to them. … Recognizing same-sex couples’ legal right to marry threatens religious liberty of those who reject such marriages no more than recognizing the legal right of mixed-race couples in Perez v. Sharp and in Loving v. Virginia.”
“By separating this group, solely on the basis of their minority status, the State has done precisely what the Supreme Court condemned in Brown,” their brief states, in reference to Brown v. Board of Education (1954) which struck down “separate but equal” laws. “Throughout history, state interference with the ability to marry has been a means of oppression and stigmatization of disfavored groups, serving to degrade whole classes of people by depriving them of the full ability to exercise their fundamental right to marry. Just as the anti-miscegenation laws of the past century propounded state-sponsored stigmatization of the basis of race, Proposition 8 does the same on the basis of sexual orientation.
“Proposition 8 denies, rather than protects religious liberty.”