Perry v. Schwarzenegger

A Win for Fact Over Prejudice

California federal judge Vaughn Walker’s opinion yesterday in the case of Perry v. Schwarzenegger—in which he struck down the state’s ban on gay marriage—was a strong defense of the values embodied in the Constitution. But it was also something more. In his 136-page opinion, Judge Walker carefully dismantled dozens of the myths that opponents of marriage equality have attempted to use as legitimate legal arguments against allowing gay people to marry. And unlike the defenders of marriage discrimination, Walker didn’t make up evidence out of whole cloth—in his analysis, he relies on expert testimony, statistics, and the lessons of history. Slate’s Dahlia Lithwick writes:

It's hard to read Judge Walker's opinion without sensing that what really won out today was science, methodology, and hard work. Had the proponents of Prop 8 made even a minimal effort to put on a case, to track down real experts, to do more than try to assert their way to legal victory, this would have been a closer case. But faced with one team that mounted a serious effort and another team that did little more than fire up their big, gay boogeyman screensaver for two straight weeks, it wasn't much of a fight. Judge Walker scolds them at the outset for promising in their trial brief to prove that same-sex marriage would "effect some twenty-three harmful consequences" and then putting on almost no case.

The stunning thing is that the feeble arguments that Prop 8 defenders were able to muster against marriage equality were in fact the best they could come up with. Kyle at Right Wing Watch writes that there was some in-fighting among the Right Wing over who would get to defend Proposition 8 in court. The fervently anti-gay Liberty Council tried to wrest the defense away from the equally anti-gay but slightly more street-smart Alliance Defense Fund, because the ADF wanted to base its case partially on factual evidence rather than purely on vitriol. The ADF won out, but they were left with a small problem: there was no factual evidence to be found.
 

PFAW

The Freedom to Marry

The American Foundation for Equal Rights has posted a transcript of yesterday's closing arguments in Perry v. Schwarzenegger, the trial challenging the constitutionality of California's ban on same-sex marriage. Theodore B. Olson, the attorney for the couples who are challenging the ban, went straight for the definition of marriage and what it means to individuals and to society.

Here are some excerpts from his closing arguments:

I think it's really important to set forth the prism through which this case must be viewed by the judiciary. And that is the perspective on marriage, the same subject that we're talking about, by the United States Supreme Court. The Supreme Court -- the freedom to marry, the freedom to make the choice to marry. The Supreme Court has said in -- I counted 14 cases going back to 1888, 122 years. And these are the words of all of those Supreme Court decisions about what marriage is.

And I set forth this distinction between what the plaintiffs have called it and what the Supreme Court has called it. The Supreme Court has said that: Marriage is the most important relation in life. Now that's being withheld from the plaintiffs. It is the foundation of society. It is essential to the orderly pursuit of happiness. It's a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons. That's the Lawrence vs. Texas case.

Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, association, spirituality and autonomy. It is a right possessed by persons of different races, by persons in prison, and by individuals who are delinquent in paying child support.

I think it's really important, given what the Supreme Court has said about marriage and what the proponents said about marriage, to hear what the plaintiffs have said about marriage and what it means to them, in their own words.

They have said that marriage means -- and this means not a domestic partnership. This means marriage, the social institution of marriage that is so valuable that the Supreme Court says it's the most important relation in life. The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.

One of the plaintiffs said, "It's the most important decision you make as an adult." Who could disagree with that?

...

On the one hand, we have the proponents' argument that it's all about procreation and institutionalizing -- deinstitutionalizing marriage, but was not supported by credible evidence. I couldn't find it. That's the one hand.

On the other stands the combined weight of 14 Supreme Court opinions about marriage and the liberty and the privacy of marriage. The testimony of the plaintiffs, about their life and how they are affected by Proposition 8, and the combined expertise of the leading experts in the world, as far as we were able to find. It is no contest.

 

PFAW