The public and Prop. 8
In the age of YouTube, it’s only fitting that a court challenge to the amendment banning same-sex marriage is broadcast.

January 11, 2010
In what could be the understatement of this young year, U.S. District Judge Vaughn R. Walker called the constitutional challenge to Proposition 8 “a case that has sparked widespread interest.” Therefore, the jurist has concluded that the nonjury trial beginning today should be recorded by television cameras and disseminated on the Internet. 

Obvious as it might seem, Walker’s belief that an important public trial should be widely accessible is considered heresy by many of his judicial brethren, especially those on the U.S. Supreme Court. They too should recognize that televised proceedings can be as important to civic understanding as C-SPAN’s coverage of Congress.

The constitutionality of Proposition 8′s ban on same-sex marriage might seem strictly a legal issue — and a dry, not terribly telegenic subject at that. But in weighing whether to strike down a law (or, in this case, a state constitutional amendment), courts sometimes take account of factual circumstances and expert testimony. Witnesses at this trial will include economists, psychologists and activists on both sides of the Proposition 8 campaign. We’ve expressed concern in the past that some of the testimony might degenerate into another nasty skirmish in the culture wars, ventilating myths such as the discredited idea that sexual orientation is a choice. But if the judge is to hear such testimony — along with, we hope, more pertinent arguments — so should members of the public, and not just those with physical access to the courtroom. In the age of YouTube, the ideal of public justice acquires an exponential importance.

 Arguments against televising the trial are either flimsy or self-serving. Yes, the presence of cameras can lead some lawyers to pitch their arguments to viewers at home instead of to the judge, but we think they’ll be careful because doing so can prove counterproductive. Some Proposition 8 supporters also say that witnesses might be intimidated by the presence of cameras. That’s a plausible scenario in a criminal case, but it has no merit in this context. Academic experts are experienced in articulating their opinions to audiences. And Proposition 8 advocates who will be testifying already have inserted themselves into a highly public controversy.

Assuming that the chief judge of the U.S. 9th Circuit Court of Appeals ratifies Walker’s decision, Californians will be offered a second civics lesson stemming from this controversy, the first being last year’s televised arguments in the state Supreme Court. Such broadcasts should be the rule rather than the exception, even when the issue at stake is less freighted with politics than the challenge to Proposition 8.

Richard Socarides
Attorney, former White House advisor to Bill Clinton
Posted: January 11, 2010 09:54 PM
“Exactly Why We Have Courts, Why We Have the Constitution and Why We Have the 14th Amendment”

Today, in a courtroom in California, a historic trial is beginning, one which may eventually decide the direction of civil liberties and constitutional rights in the United States into the foreseeable future. 

That trial is Perry v. Schwarzenegger, and the battle for that most basic of civil rights, the right to marriage for anyone, regardless of sexual orientation, is now officially underway. 

Theodore B. Olson, lead attorney for the plaintiffs, delivered his opening remarks this morning starting at 9 AM PT. In these, he reminded the court that “in the words of the highest court in the land, marriage is the most important relationship in life,” and that basing the right to that relationship “on characteristics of an individual” is unconstitutional. He also noted that the stop-gap of domestic partnerships currently available in some states is an unequal alternative, and moreover, sounds like “a commercial venture.” 

”Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.”

Mr. Olson continued, noting that according to the California Supreme Court itself, “eliminating the right of individuals to marry a same-sex partner relegated those individuals to ‘second class’ citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition.” He then went on to lay out reasons for the importance of marriage, the harm Proposition 8 has done to gay and lesbian couples, and the lack of any valid reasons behind this exclusion. 

Olson, a conservative who served as the attorney for the Bush side of Bush v. Gore, has received significant media attention for his involvement in this case. In an essay recently published in Newsweek entitled “The Conservative Case for Gay Marriage,” he explained his reasoning, noting that he sees this as an issue of “recognition of basic American principles[and] commitment to equal rights,” not a reason to invoke politics. He went on to say that “Americans who believe in the Constitution’s guarantees of equal protection and equal dignity before the law cannot sit by while this wrong continues.”
(President Bill Clinton recently agreed, saying that his former reluctance to endorse gay marriages was because he was “hung up about the word,” and that he “was wrong about that…I had an untenable position.”) 

Mr. Olson’s remarks are just the beginning of a three-week trial, which is eventually expected to be appealed all the way to the Supreme Court. Though Federal Judge Vaughn Walker had originally agreed to air the trial on YouTube, with some delay, the Supreme Court this morning overturned that decision, meaning that, at least until Wednesday, cameras will not be allowed inside the courtroom. 

Nevertheless, this trial, a landmark of civil rights for our time, is sure to draw the eyes of the world. The stakes could not be higher, but as Olson said today: “that is exactly why we have courts, why we have the Constitution and why we have the 14th Amendment….That is why we are here today.”

Prop 8 is simply unconstitutional
By Lisa Bloom, Special to CNN
January 12, 2010 2:49 p.m. EST

Editor’s note: Lisa Bloom is a CNN legal analyst and is the managing partner of The Bloom Firm, where she practices civil and criminal law.

(CNN) – A pop star could have a quickie Vegas wedding tomorrow, to a man she meets tonight, if she so chooses. Scott Peterson, convicted of the murder of his pregnant wife and on death row, has an inalienable right to a prison wedding with a female pen pal if the mood strikes him.
Indiana grandmother Linda Wolfe holds the Guinness World Records title for most marriages: 23. One lasted just 36 hours. She’s on the lookout for No. 24, and when she finds him, no law can stop her from marrying him.
The U.S. Supreme Court has held unanimously that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. Marriage is one of the basic civil rights of man.”
So basic, so important, so fundamental, in constitutional parlance, that no state can interfere with even the most reckless heterosexual nuptials.
Yet in most states, my friends Wilbert and Carlos, “free men” together 16 years and lovingly raising a son, are shut out of the 1,100 federal and hundreds of state legal benefits that come with marriage. These include the right to visit a spouse in a hospital and make medical decisions; employer sick and bereavement leave; inheritance rights; the right to give unlimited gifts to a spouse without gift tax; disability, pension, and Social Security benefits; the right to bring a wrongful death case; the right to refuse to testify against a spouse; or the right to prevent the deportation of a foreign-born partner by marriage, among others.
Perhaps most poignant, and often lost in this debate, are children in same-sex families: kids like my friends’ son Dorian, growing up with the sting of knowing that his parents are second-class citizens in their own country.
Study after study finds that something about marriage makes us live longer, healthier lives. Married folks have significantly better mental health, engage in fewer risky behaviors, eat healthier, have less illness and are just plain happier.
And don’t tell me that civil unions are exactly the same as marriage. If that’s true, then let’s let gays and lesbians pick first. If they pick marriage, and heterosexuals are relegated to civil unions, no problem, right, since they are exactly the same?
The trial challenging Proposition 8, the law that bans same-sex marriage in California, started Monday in San Francisco.
This will be the first federal trial in U.S. history in which testimony will be heard and recorded about the harm to gay and lesbian citizens caused by laws like Prop 8.
As a civil rights lawyer for 23 years, there is no question at all in my mind that as a matter of constitutional law, the federal court must strike down any law that creates a subclass of Americans, shutting them out of legal privileges and protections available to others, merely because they are gay.
Demeaning and disrespecting gay people is a constitutional affront.
Seven years ago, the U.S. Supreme Court handed down Lawrence v. Texas, the gay community’s Brown v. Board of Education, striking down state laws that criminalized private, consensual gay sex, saying: “The petitioners are entitled to respect for their private lives. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime.”
When all the testimony about legal rights, benefits and protections in the Prop 8 trial is said and done, Perry v. Schwarzenegger is ultimately about just that.
Our gay and lesbian friends and neighbors are entitled to respect for their private lives, and the state cannot demean their existence, even by majority vote. Seven out of 10 Americans supported laws banning interracial marriage at the time our president’s black father and white mother married.
But the Supreme Court knew that our federal Constitution’s guarantee of equal protection of the law was a bedrock American principle that sometimes requires the courts to lead, and so lead they did, striking down antimiscegenation laws in 1967. Now, only lunatic-fringe bigots would support those laws.
My favorite anti-Prop 8 placard read: “When do I get to vote on your marriage?” Same-sex marriage may be a politically volatile and complex issue, but as a matter of federal constitutional law, it’s simple: Fundamental rights must be granted equally across the board to all American citizens. Equal means equal. The rest, constitutionally speaking, is just noise.

Dustin Lance Black
Board Member, American Foundation for Equal Rights
Posted: January 12, 2010 06:13 PM
We Cannot Wait

Almost 32 years ago, in San Francisco’s City Hall, having just defeated anti-gay proposition 6, Supervisor Harvey Milk stood in his office debating what the next step in the gay and lesbian movement should be. Per usual, he found himself in a heated debate with the other “gay leadership” who insisted he was moving too fast. He insisted it was time to march on Washington D.C., to follow in the footsteps of every successful civil rights struggle in this great Nation’s history and garner federal attention. 

Not 24 hours later, Harvey Milk was tragically taken from us, and with him vanished the indomitable spirit, strength, and unwillingness to back down necessary to make this a federal fight. 

Finally, 32 years later, in the city he loved, we are fulfilling Harvey’s dream. 

Over the past months I have had the pleasure and privilege of meeting the plaintiffs in Perry vs. Schwarzenegger. Their love is true, their families are strong, and to hear their stories is to know they deserve full recognition of their love, both for themselves and for their families. The time has come for the world to meet Kris Perry and Sandra Stier, Paul Katami and Jeff Zarrillo. Their stories are our stories, ones of finding love with another person, of overcoming adversity, and of the strength and importance of family. 

But now their stories must take a place in history, next to Brown vs. Board of Education and Loving vs. Virginia, in order to confirm what our great Constitution already tells us is true: that separate is not equal, and that all men and women, regardless of skin color or sexual orientation, deserve equality. 

To those who have said, “Wait,” I say, Gay and Lesbian people should not be forced to wait years to be treated equally under the law. By straining to avoid our federal Constitutional arguments, we only reinforce the false notion that our arguments lack merit. We reinforce the lies and myths and stereotypes that have been forced upon us for generations. We send a signal that we must not truly believe we are equal. The truth is, we are equal, and our love deserves equal recognition and protection under the law. Truth is on our side, and justice, but time is not. 

We cannot wait.
We cannot wait for more children to be born into this country hearing that they are “less than,” that this country considers them inferior or second class, that their love is not worth honoring. If we do, how can we ever expect them to contribute, to thrive, or even just to survive? 

We cannot wait for one more young person to hear this terrible news and take his or her own life, or have it brutally taken from them. 

Now is the time for this federal challenge. 

I’ve said this so many times before, but never has it seemed more appropriate than it does today. To many of us, this challenge sounds like debate and politics, tedium and hard work, but to the young people out there who are afraid, who tune in and hear that we have taken this bold new step, it will sound more like: “You are not less than. You have brothers and sisters, gay and straight, black and brown and white, thousands of us. And your struggle is our struggle, and your fight is our fight, and very soon, we promise you, you will be equal citizens, and you will be free.”

EDITORIAL
Discrimination on Trial, but Not on TV
Published: January 14, 2010
The trial that started on Monday in San Francisco over the constitutionality of California’s voter-approved ban on same-sex marriage could have been a moment for the entire nation to witness a calm, deliberative debate on a vitally important issue in the era of instant communications. Instead, the United States Supreme Court made it a sad example of the quashing of public discourse by blocking the televising of the nonjury trial.
The court blocked the public broadcasting of the proceedings by its familiar 5-to-4 split. In a vigorous dissent, Justice Stephen Breyer correctly objected to the court’s highly unusual intervention. He concluded, “The public interest weighs in favor of providing access to the courts.”
The antipathy of some justices to televising Supreme Court arguments is as well known as it is wrongheaded. But the court’s stance against allowing unobtrusive C-Spanlike coverage of its own proceedings should not foreclose public viewing of this case.
There have been claims that televising the courtroom proceeding would somehow be unfair to defenders of Proposition 8, the California ballot initiative that banned same-sex marriage. They are hazy and unsubstantiated and vastly outweighed by the strong public interest in the airing of a major civil-rights issue. But the Supreme Court’s majority bought the false argument.
Over the next three weeks or so, the trial will test whether Proposition 8 violates the Constitution’s guarantee of equal protection. The trial already has featured emotionally charged testimony about the marriage ban. It is a chance for close cross-examination of opponents’ bogus claims that permitting same-sex couples to wed would harm heterosexual marriage.
No matter how the trial turns out, the verdict is unlikely to be the final word. There are destined to be appeals, and the Supreme Court may well have the final say. There is considerable anxiety among supporters of same-sex marriage that the case may reach the Supreme Court too soon, while public opinion on same-sex marriage is evolving.
Those fears are understandable. But there is a strong legal case that California voters trespassed on the Constitution when they approved Proposition 8. The courtroom battle now unfolding bears close watching, and the Supreme Court should not stand in the way of Americans viewing it and reaching educated judgments.

January 14, 2010, 9:34 PM
Into the Closet
By Linda Greenhouse
Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?
My observation is, of course, prompted by the success that opponents of same-sex marriage had this week in persuading the Supreme Court to bar cameras from the San Francisco courtroom where Proposition 8 is now on trial. That is the amendment that California’s voters added to the state’s Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.”
Judge Vaughn R. Walker of United States District Court for the Northern District of California, presiding over the challenge to Proposition 8 in the non-jury trial that began on Monday, announced last month that the court would provide a live video feed to enable remote viewing elsewhere in the courthouse as well as infederal courthouses in four other cities. He also raised the additional prospect of later posting on YouTube and the Internet. The Proposition 8 defenders, claiming that their witnesses would face harassment if their testimony was broadcast beyond the courtroom, asked the Supreme Court to block the plan. By the familiar vote of 5 to 4, the court quickly complied.
Beyond the ideological divide that the case produced, and the fact that Justice Sonia Sotomayor allied herself in dissent with her three most liberal colleagues, Justices Stephen G. Breyer, John Paul Stevens and Ruth Bader Ginsburg, a public spat between two powerful judicial forces provided another intriguing dimension to this fast-moving dispute.
One was Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, who approved the district court’s remote video plan. The other was the Judicial Conference of the United States, the federal courts’ chief policy-making body, headed by Chief Justice John G. Roberts Jr., who remained in the background as two top conference officials sent Judge Kozinski acoolly worded two-sentence letter “to bring to your attention” the longstanding Judicial Conference policy against televising trials.
Judge Kozinski, long the Peck’s Bad Boy of the federal judiciary, known for flaunting both brilliance and quirkiness, shot back with a reminder of his own — that “like it or not, we are now well into the 21st century.” His six-page letter basically declared that the Ninth Circuit would continue to do what it wanted. To describe the Supreme Court’s subsequent unsigned opinion blocking the video plan as a rebuke of Judge Kozinski would be an understatement.
That intrajudicial melodrama, so delicious that I could not resist describing it, should not obscure the larger canvas against which this episode unfolded. The Proposition 8 backers are far from the only proponents of “traditional marriage” to run for cover after invoking the levers of direct democracy. And the Supreme Court may have just begun to explore the issues raised by this quest for a new application of the old right to privacy.
At its private conference on Friday, the Supreme Court is due to consider whether to hear an appeal brought by an organization called Protect Marriage Washington. Under the slogan of “Preserve Marriage, Protect Children,” the group ran a successful petition drive to place on the state’s November ballot a referendum giving voters a chance to repudiate a new state law that granted enhanced benefits to couples registering as domestic partners. (The voters ended up reaffirming the new law, which took effect last month.)
Under Washington’s Public Records Act, the signatures on referendum petitions are public records, available for inspection and copying. The Public Records Act, itself the product of the public initiative process, provides as its rationale that “the people insist on remaining informed so that they may maintain control over the instruments that they have created.”
Last summer, Protect Marriage Washington filed suit to bar public disclosure of the names of their 138,000 petition signers. It won an initial victory, but the Ninth Circuit ruled on the eve of the election that the names were subject to disclosure. The members of the three-judge panel observed that “referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect.” The court held that the public interest in disclosure outweighed the “incidental limitations” that disclosure placed on the signers’ exercise of their First Amendment right to political speech and association.
The case, Doe #1 v. Reed, No. 09-559, obviously got the Supreme Court’s attention. In October, with only Justice Stevens dissenting,the court issued a stay of the Ninth Circuit’s decision in order to permit Protect Marriage Washington to prepare a Supreme Court appeal.
In other cases around the country, opponents of same-sex marriage have challenged disclosure of financial contributions to referendum campaigns. The Proposition 8 backers won their bid in the Ninth Circuit to block pre-trial discovery of their internal strategy memoranda.
There is a rich body of law on anonymity for political speakers and actors, including landmark Supreme Court decisions from the civil rights era protecting the N.A.A.C.P. against forced disclosure of its membership lists. For the most part, the decisions have been highly attentive to context. A question now is whether the opponents of same-sex marriage can plausibly claim, as their court papers have sought to do, that they face threats to their lives and property comparable to those faced by civil rights workers in the Deep South in the 1950’s and 1960’s. A challenge to compelled disclosure of financial information under the McCain-Feingold campaign finance law is part of the current Supreme Court case Citizens United v. Federal Election Commission, which was argued in September and on which the justices appear to be permanently stuck.
The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question — in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week’s development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question.

CAPITOL JOURNAL
Prop. 8 backers’ procreation argument doesn’t ring true
People marry for all sorts of reasons besides having children.
By George Skelton, Capitol Journal
January 14, 2010
The notion that baby-making is the principal purpose of marriage in 21st century America is plain absurd. Let’s just say that upfront. 

Arguably it never has been the main reason for matrimony. Of course, for some people it has been and still is. But that doesn’t make it a universally accepted concept.

Not being a psychologist, anthropologist, cleric or attorney, I’m a little out of my league here. I’m merely a hack columnist, a California native who writes about state government and politics.

And admittedly I didn’t pay much attention to the Proposition 8 campaign in 2008 when voters reinstated the ban on same-sex marriage, six months after the California Supreme Court had ruled that a previous ban approved in 2000 violated the state Constitution. I figured it was a gut vote for most people. They weren’t looking for a lot of pundit analysis.

For the record, I voted against Prop. 8. I finally concluded a few years ago — and wrote about it then — that we had much more important things to worry about than what two people living together in a loving relationship were called: “partners” or “married.”

Many opponents of same-sex marriage argue that it violates God’s will. Maybe theirs. My God doesn’t fret about homosexuality. And I figure if gays and lesbians can gain some comfort and happiness from formal marriage, then let them. Congratulations and good luck.

In the heated Prop. 8 campaign, I don’t recall proponents pushing the idea that gay people don’t qualify for marriage licenses because the main purpose of wedlock is child production. If they had, I suspect some straight voters would have been offended — as I was while reading their attorneys’ contention at the start of a federal court trial Monday to determine whether Prop. 8 violates U.S. constitutional rights of equal protection and due process.

The closest the Prop. 8 side came in the official voter guide argument was that “the best situation for a child is to be raised by a married mother and father.” That’s a legitimate debate. But it’s far different from what attorney Charles J. Cooper asserted in court: that procreation is the “central or defining purpose” of marriage.

The ballot argument focused heavily on “the outrageous decision of four activist Supreme Court judges who ignored the will of the people” in overturning the original 2000 ban on gay marriage.
 What the electorate has joined together, let no court put asunder?

 Nonsense. The voters sometimes get it wrong. One example: In 1964, Californians voted to continue racial discrimination in the sale and rental of housing. They passed Prop. 14, an initiative that repealed legislation banning the bigotry. Fortunately, the Supreme Court overturned the voters’ will. Today, no sane person would think of advocating racial discrimination in real estate.

The idea that marriages are first and foremost about baby-making-and-rearing was expressed by Cooper in October in an unsuccessful attempt to dismiss the suit filed by two same-sex couples against Prop. 8.

”We say that the central and defining purpose of marriage is to channel naturally procreative sexual activity between men and women into stable, enduring unions for the sake of begetting, nurturing and raising the next generation,” Cooper told U.S. Chief District Judge Vaughn R. Walker in San Francisco.

”Well,” the judge replied, “the last marriage that I performed, Mr. Cooper, involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?” 

”No, your honor.”

Cooper continued: “It’s simple biological reality that same-sex couples do not naturally procreate.” 

”Well, fair enough,” the judge said. “But procreation doesn’t require marriage.”

Harvard professor Nancy Cott, who has written a book on the history of marriage, offered the court this insight Tuesday: 

”It’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile. . . . This was an advantage in many people’s minds because he couldn’t establish a hereditary monarchy when he became president. “

Yes, we all know happily married, childless couples who benefit society without ever propagating. Some can’t produce children. Some choose not to. Some adopt. Some bring cats or dogs into the family. Whatever works. It’s really nobody’s business — least of all the government’s.

They get married for many reasons: companionship, physical attraction, financial protection, to make a commitment. . . . Many even get married, and stay married, because of love. 

I called a UCLA history professor, Ruth Bloch, who says she wasn’t involved in the Prop. 8 campaign and is not a member of a gay rights groups, but did vote against the initiative.

 I asked whether marriage is fundamentally about procreation. That idea “is certainly out of date,” she said. “Even back in the time of the Puritans, they didn’t only marry for procreation, they married for companionship.”
 Marriage began in prehistoric times, Bloch says, as a way for men to acquire exclusive sexual access to a woman so they could guarantee that her children were his.

 In colonial America, she continues, “when men talked about how to choose a wife, it would be for economic reasons. They wanted someone industrious and frugal . . . . One of the key functions of marriage has had to do with transmission of property to successors.”

The idea of “love-based marriage,” Bloch adds, didn’t emerge until the late 18th century, “stoked” by the birth of the romance novel. 

”A lot of people think that romantic love is what led to the evolution of divorce,” she says. “People didn’t like each other anymore, so their marriage was no good. Divorces only accelerated tremendously in the 20th century.”

 So love leads to divorce.

 Just what is a “traditional marriage” anyway? 

All I know is that if the inability to procreate “naturally” is the best argument for denying same-sex couples the right to marry, it doesn’t track logically. Judges will decide whether it does legally.

Antonio Villaraigosa
Mayor of the City of Los Angeles
Posted: January 14, 2010 05:52 PM
We Need an Open Debate on Prop 8
Yesterday, the Supreme Court ruled to extend a ban on releasing the footage of Proposition 8 trial currently taking place in San Francisco to the public. The ruling, written by the court’s five conservative justices, stated that defenders of the ban on same-sex marriage ban would face “irreparable harm” if the footage from the trial was accessible to the public.
The greater harm to the public, however, is keeping from them the facts on how homophobia has fueled the testimonies of the defense’s witnesses. The public deserves to see the true face of intolerance and prejudice behind Proposition 8.
Yesterday’s court decision is yet another unjust ruling in the fight for equal rights for all people, regardless of their sexual orientation.
The Supreme Court should be committed to transparency and openness, especially on a case with such real, human, potentially painful implications. It is incumbent upon the courts to right this wrong as well as grant equal rights to all Californians – and all Americans – to marry.

Kristina Schake
Board Member, American Foundation for Equal Rights
Posted: January 14, 2010 01:36 PM
Women’s Rights and Gay Rights: What Can Be Learned in the Quest for Equality
Perhaps people find it easier not to support the gay rights movement, to tell themselves that these individuals are somehow less deserving of equality under the law, because gay and lesbian individuals make up a relatively small sector of society, one which, in many communities across the nation, one hardly encounters at all, certainly not with any personal face attached to it.
But think of it for a moment in comparison to a movement that, as a straight woman, I have plenty of personal experience with and which it closely mirrors, a movement which affected more than half of the people in the United States, and indeed, in the world: the women’s movement. Before the current battle over the evolution of marriage, a different war for marital and personal freedoms was fought in this country, by and for women who were hoping to find something more than just marriage, as well as more rights within that union.
Up until very recently, then, women and gays have been, if not in the same boat, then at least sailing in the same direction. 

In the distant past both groups suffered from the sort of discrimination that today we find abhorrent; women not only couldn’t vote, they couldn’t own property, divorce an abusive husband, or act as a witness in a court of law. Up until the 1860s, sodomy in Britain was punishable, and through the 1830s actually punished, by death.
Moving into the early twentieth century, women were still without a vote, and thus a voice. At this time, gays were the targets of police raids, and, as laws were on the books barring them from activities as simple as public assembly, they, too, were unable to speak for themselves in any meaningful way. 

But in the 1920s, the tide began, however so slowly, to turn in the direction of justice. In 1920, a Federal decision (boy does that sound familiar…) gave American women the right to vote, regardless of the fact that, in many parts of the United States, this was still an incredibly unpopular move. In 1924, after years of being forced into the shadows, the first homosexual rights organization, The Society for Human Rights, stepped out into the light. True, it didn’t last long (the group was soon broken up by police forces), but it was a giant step in the right direction.
Incremental gains have been made by both groups throughout the twentieth-century. After WWII forced thousands of women into formerly ‘men-only’ jobs, the idea of women doing something outside the home started to take off. Detailing all the amazing achievements, the risks taken, the sacrifices made during the intervening years would take 100 op/eds. Suffice it to say that I am proud to say that because of the crusading women of the last few decades, the last generation or two of women growing up in this country have rarely if ever had to question whether or not they would be able to pursue their dreams, their goals, and their passions due to something as fundamental as their gender. Hundreds and thousands of women who came before them, and who spoke out against the way they were being treated, have given them a place in society that even fifty years ago few women would have dared hope for.
The gay-rights movement has gained ground, too; that same generation of young people who are daring to dream for more are overwhelmingly in favor of equal rights in all things, including marriage, for gay men and women.
But here is where the story of women’s rights and gay rights diverge; while both groups still face discrimination, while neither battle has been “won,” only gay and lesbian individuals are still being subjected to a legally-enforced brand of second-class citizenry. Whereas our young women are being told to shoot for the stars, that there is no glass ceiling anymore, that they can be and do anything if they put their minds to it, gay and lesbian individuals are hearing a different message: you can live your lives the way you like, but only up to a point.
In 2010, would you be willing to look at more than half of the people around you, your mothers, sisters, daughters and friends, and tell them that they should continue to put up with a “less-than” position in society? If the answer is no (and I hope it is), keep in mind that the gay individuals who are asking to marry are also sisters and brothers, daughters and sons, loving parents and loved children; would you tell them, then, that they are not as good, not as deserving, not as worthy of equality? If it was your friend, loved one, or child, could you like him or her in the eye and say “this right isn’t for you?”
This isn’t a problem being fought in distant courtrooms and the halls of justice for a group of unknown people, this is a fight being fought just down the street, in your local public high school, by your friends, neighbors, and family members. We have to stop thinking about gay and lesbian individuals as a group of “others” and start seeing them as they are – people just like us, living the same sorts of lives as we are, with the same hopes and dreams for themselves. 

If the struggles of the women’s movement have taught us anything, it’s that there’s no limit on what an individual can do when given a real chance. But until we give them those chances, tell them they’re deserving, allow them to be equal, we’ll never know just how much we’re missing.

EDITORIAL
The marriage test
There isn’t one for heterosexual couples, and there shouldn’t be one for same-sex couples either.
January 15, 2010
In what ways would same-sex marriages be the same or different from heterosexual marriages? Answer: It’s nobody’s business.

 Yet the matter was explored at length in court this week by an expert for the plaintiffs — the pro-gay-marriage group challenging Proposition 8. Homosexual couples are much the same as heterosexual couples, Letitia Peplau, a UCLA professor of social psychology, testified. They form relationships in which the closeness and stability measure as high.

 We’re sorry the topic even came up. Not because we believe there is necessarily anything different about same-sex relationships, but because it doesn’t matter if there is. Same-sex couples shouldn’t have to prove that their marriages would be as “normal” as those of heterosexuals or meet some kind of artificial bar — a bar that many heterosexual couples fall short of — for an ideal marriage.

 This strikes at the heart of what’s wrong with denying marital status to gay and lesbian couples. Somehow, society — and in this case, a federal judge — are being put in the position of deciding whether these unions are “good enough” to earn the legal and social status of marriage. We don’t judge these issues for heterosexual marriages.

 Marriage is, at its core, a contractual agreement that confers certain legal privileges and responsibilities on its signatories, as well as social respect. Within that definition and behind the closed doors of every couple, the institution of marriage takes many forms, some of which are more attractive to society than others. 

Some people wed for money or health benefits. In this town, some of them enter short-term marriages for the publicity. (You know who you are.) Teenagers barely old enough to vote marry despite the higher likelihood that they will divorce. Serial monogamists wed. There are couples who swap spouses, and those who live apart yet maintain their sense of affection and responsibility toward each other. Many a marriage, even those begun in love, ends up quirky at best and dysfunctional at worst.

 The public as a whole might not look favorably on all of these marriages, but it does not try to deny others the right to form such unions. It’s gay and lesbian couples who are singled out for this. Only in a hearing on same-sex marriage would we hear arguments judging whether a relationship between two adults is loving and committed enough to gain legal and social standing — evidence on its own that homosexuals, who have long faced unreasoned hatred and abuse in many forms, are being singled out for the withholding of this basic societal right.

OPINION
Prop. 8, the trial that should be seen
It’s more than a legal case; it’s a morality play aimed at all of us, and we should get to hear it.
By Barry Friedman
January 15, 2010
It’s too bad the U.S. Supreme Court ruled Wednesday that California’s Proposition 8 trial on same-sex marriage — Perry vs. Schwarzenegger — may not be broadcast beyond the courthouse. Like the Scopes “monkey trial” with which it is sometimes compared, Perry is not a legal case in the strict sense. It is a morality play aimed at all of us, speaking in a sense for all of us, and we should get to hear it.

In 1925, the national media descended on the small mountain town of Dayton, Tenn., to watch legendary lawyer Clarence Darrow go up against Populist leader William Jennings Bryan. The ostensible basis for the suit was whether barring an instructor from teaching evolution violated his rights. In truth, Scopes became a stage play reflecting a brewing public debate between fundamentalist Christian values and enlightenment scientific positions. The trial was covered by hordes of print journalists and was the first to be broadcast nationally by radio, and countless Americans tuned in. 

The parallels with the Perry trial are telling. It too is peopled by star lawyers, most notably David Boies and Theodore Olson, who faced off in Bush vs. Gore and have now joined hands in support of gay marriage. The issue is equally fundamental. And what happens in San Francisco may be the first step in the resolution of an issue that not only affects, but implicates, us all.

 The question of cameras in the courtroom involves a trade-off between every citizen’s right to watch the processes of government and fairness to the parties, witnesses and jurors. It is all the more complicated here by questions of whether the trial court followed procedures in allowing the broadcast in the first place.

But Perry, like Scopes, is no ordinary trial. In most court cases, something happened, and the purpose of the trial is to ascertain exactly what that was. Did the defendant mug the victim or cook the corporation’s books; was a company negligent to design the car the way it did? When it comes to courtrooms, we worry about fact-finding biased by the presence of cameras, and about witness and juror safety. 

The questions being tried in Perry are of an entirely different nature. To “prove” their case, the plaintiffs must show that California has no legitimate — let alone compelling — interest in regulating who gets married. So the witnesses are “testifying” about the history and meaning of marriage, the profoundness of their love for one another, the morality of homosexuality and animus about gays. Guess what. Legal procedure won’t resolve these “facts.”

 The participants in Perry are already on camera, like it or not. The case is part of a national drama over gay rights in which the participants choose to take a part. There is one legitimate concern about cameras. Opponents of Proposition 8 have used modern technology to “out” the donors to the campaign against gay marriage, and some of the latter have been harassed. 

This sort of behavior is troubling no matter who engages in it; the law protected donor lists to the NAACP in the South for similar reasons. But, as the Supreme Court dissent pointed out, the witnesses already are fully in the public eye. 

The current trial is but the first step on a ladder that was always designed to end in the Supreme Court. Cases like Perry have almost nothing to do with the parties in them (though those parties will surely be affected). They are aimed at social change, and in this dispute, some see the Supreme Court as the brass ring.

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls.

That’s why the plaintiffs in Perry want the trial televised, and the defendants do not. There’s a huge national to and fro going on over gay marriage. The plaintiffs hope to out the opposition to gay marriage as nothing but irrational hatefulness. The trial record is intended to be Exhibit A in the Supreme Court. But to prevail, the plaintiffs and their supporters ultimately must capture the hearts and minds of the American people. 

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?

Many proponents of same-sex marriage in the gay community opposed the Perry litigation, believing that the suit came too quickly; that public opinion is unsettled. Scopes may be instructive here as well. John Scopes lost and paid a small fine, though even that was overturned on appeal. But the real effect of the trial was to embolden creationists; it potentially set back the widespread teaching of evolution for years. The issue of creationism — now called “intelligent design” — was “tried” in Pennsylvania in 2005; it has not gone away.

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.

Lt. Dan Choi
Posted: January 15, 2010 06:21 PM
Injustice Anywhere Is a Threat to Justice Everywhere
I learned any number of things in my time at West Point; the rigorous physical discipline I would need in my time as an Officer in Iraq, the foundation of knowledge in Arabic and environmental engineering that would help me contribute to the military even outside a war zone, and most importantly, the fundamental fact that on any battlefield, in any combat zone, your best strategy is to be proactive, not reactive. When you’re fighting for your life, sitting back and waiting to be attacked is not an option. Battles have to be fought and won; if we could just wait for them to be handed to us, we wouldn’t be fighting in the first place.
This last lesson has as many implications in civilian life as it does in the military, and as a gay officer, I feel there is one specific arena today where it is most apt: namely, the battle to overturn discrimination against gay and lesbian individuals.
I have spent my life in the army fighting for what I believe is right, and to uphold the American dream both at home and abroad. For me, that has meant fighting, actively, against the “Don’t Ask, Don’t Tell” policy. The sorts of skills I learned at West Point, how to quickly analyze and react to a situation, make a split-second decision when necessary, and, outside the combat zone, develop lasting positive relationships with the Arab people and the world environment, have never had anything to do with my sexual orientation. There is no reason, then, that I should be forced to hide it.
I adamantly believe that this policy, one which enforces a sense of shame, of inadequacy, and of secrecy on the brave young men and women willing to serve our country is discriminatory, and should thus be abolished. As a soldier, I had to swear an oath to uphold the Constitution; written into that noble document are the words “all men are created equal.” I believe in that document and those words, and so I don’t believe that I should be made to feel unequal under a discriminatory policy like “Don’t Ask, Don’t Tell.”
It is my history in the war against discrimination as embodied in DADT that has drawn me into another battle currently being waged, one where I have not yet been an active soldier: the battle to overturn Prop 8.
Why enter the fray? Because, as with DADT, I believe that, at its core, Proposition 8 is the product of ignorance and discrimination against a group of people who are entitled to the same equality that the Constitution, and, as one of its defenders, I, uphold. When my fellow soldiers and myself go overseas, leaving family and friends behind and often putting our very lives at risk, it is to uphold an oath that asks us to reject discrimination of all kinds. To come home from a mission intended to spread that highest ideal of democracy, namely equality, and be told that, as a gay soldier, I am not entitled to the same rights as my fellow American citizens, that, in fact, I am in effect a second-class citizen to whom certain rights aren’t available, seems to me fundamentally immoral. I’m willing to put my life on the line for this country; don’t I at least deserve the same protection and recognition for my relationships as any straight civilian?
There has been much debate about whether the court case currently being waged in California right now is the right way to go about achieving marriage equality. Is it too soon, some wonder? What if we are defeated, and that defeat sets us back for years to come?
As a veteran both of battlefield combat and of its political counterpart, I don’t think so. Here, as with any fight, we have to be strategic, proactive, and most importantly willing to fight for what we believe in. Sitting back and allowing the status quo to prevail simply because it would be easier is not what moves us forward as a people. It is in our history, our Constitution, indeed, in our makeup as American citizens to take the fight to injustice, and to fight it wherever we see it raise its ugly head; right now that battle is in California, and so, even though I have no history with the marriage equality battle, that is where I will lend my support. As a soldier, I know when my country needs me; as a gay Officer who has had to fight discrimination before and will have to fight it again in the future, I know that now is one of those times.
Remember those great words of another veteran warrior for civil rights, Dr. Martin Luther King, Jr.: “injustice anywhere is a threat to justice everywhere.” Right now the greatest injustice I see is the discrimination going on at home: are you willing to stand up in order to defend what’s right? I know I am.

Geoff Kors
Executive Director, Equality California
Posted: January 15, 2010 12:35 PM
Gay Marriage: From a Federal Case to a National Movement
It’s been a groundbreaking week for same-sex couples in the quest to achieve marriage equality as the federal case against Proposition 8 (Perry v. Schwarzenegger) moves forward in the court of Judge Vaughn Walker in San Francisco.
In watching the case’s progress, I’ve been thinking about what it means for our movement. The witnesses and the stories of Perry v. Schwarzeneggerare telling us many things about the state of our work to restore the freedom to marry to California’s same-sex couples, and to secure this freedom for couples across the nation.
Building Coalition with Other Minorities
We heard on Wednesday how Hak-Shing William Tam, an activist who helped to put Prop. 8 on the ballot, had sent a letter to members of Chinese-American church groups arguing that advocates for marriage for same-sex couples wanted to “legalize having sex with children.” He also wrote that if California allowed all couples to marry, “other states would fall into Satan’s hands.”
Tam’s claims are outrageous, of course. What won’t our opponents say as they try to frighten people away from supporting marriage for all couples?
Tam’s efforts didn’t pay off as he had hoped they would. Statewide, fifty-two percent of Asian Americans, including many Chinese Americans, voted against Proposition 8. But Proposition 8 showed that we need to build even stronger coalitions with racial, ethnic and other minorities.
As Shannon Minter, legal director of the National Center for Lesbian Rights and a board member of the Equality California Institute, pointed out onPam’s House Blend:
If a court determines that widespread (and unjustified) bias prevents a group from being able to fully protect itself in the elected branches of government, it is more likely to find that the group should be afforded heightened constitutional protection under the federal equal protection clause.
All minorities are protected through the same provisions under our Constitution. Our struggles for legal protection vary in the way they are conducted, and each must take its own shape. But under our government the mechanisms for protection are the same.
Our opposition will go to great lengths to convince other minority groups that our struggles have nothing in common. We have to respect and acknowledge the differences between the LGBT rights movement and other movements like the African-American civil rights movement, but we also must work together. It’s critical for LGBT people and our movement to stand up for the rights of other minorities and to be a part of other social justice struggles. Here in California we are working hard with allies like the California NAACP, Chinese for Affirmative Action, the Equal Justice Society, and religious and civil leaders in many communities, supporting and championing their priorities and throwing our weight behind their efforts.
Telling Our Stories
In the federal courtroom on Monday, plaintiff Kristin Perry told the court that when you grow up as a lesbian, you tell yourself that marriage is one thing you cannot have. She told the court of her struggles from day to day in deciding whether to come out to sales people, store clerks and the people she meets as she is coaching her kids’ soccer team.
The amazing legal team for our side has lined up a great set of expert witnesses, but none of them have touched me as much as these brave couples. Perry spoke from the heart, as did her wife Sandy Stier and the other plaintiff couple, Paul Katami and Jeff Zarrillo. They were so remarkable the defense team for Proposition 8 largely declined to cross-examine them. They did ask Katami to watch videos from the campaigns and then grilled him about his testimony that the ‘Yes on 8′ campaign’s claims that children would be harmed if same-sex couples could marry was misleading and hurtful. Katami bravely stood his ground, telling the courtroom that these assertions were a diversionary tactic, and that Proposition 8 itself had nothing to do with children. He expressed just how painful those falsehoods were.

LGBT people and our allies know these feelings well. Now the court knows them, too. Perhaps this is a big part of the reason why the proponents of Prop. 8 were so opposed to allowing the proceedings to be televised. Perhaps they also see that, when people really understand our lives and our experiences, they come to support marriage equality and equal rights. That’s why we have to keep telling our stories and helping others to understand why marriage and equal rights matter. If you live in California, please sign up to volunteer with EQCA’s statewide field program and share your personal story with others.
Our Elected Leaders Must Act
When the anti-gay Briggs Initiative, which sought to ban gay people from becoming teachers, appeared on the California ballot in 1978, President Jimmy Carter, then Governor Jerry Brown and future president Ronald Reagan spoke out against the initiative. Today, California’s Governor Arnold Schwarzenegger and Attorney General Jerry Brown are telling the Court that Proposition 8 cannot be defended under the U.S. Constitution. Elected leaders of both major political parties have stood up for the freedom to marry.
Equality California is asking President Obama and his administration to file a brief asking the Court to rule that it is unconstitutional to allow a majority to take away the rights of a minority. The President promised on the campaign trail that he would repeal the Defense of Marriage Act, and as a Senator he voted against the Federal Marriage Amendment. It seems clear that he can support a legal system shaped by principles of fairness and egalitarianism.
We are not just calling on President Obama to stand up for LGBT rights. We are also calling on elected leaders across California, too. The EQCA Political Action Committee is gearing up for a busy year with the gubernatorial election and other key races. We only endorse candidates who are 100 percent for LGBT equality. LGBT and allied voters elect leaders to represent our community’s interests. We must choose carefully who we vote for, and once they are in office we must make it clear that we expect them to act.
If a conservative, famed attorney such as Ted Olson can stand before the court to argue on our behalf, taking months and years of his life to plead our case, surely our president can take a stand for fairness as well.
Please sign our petition and join us in asking President Obama to be the “fierce advocate” he promised us he would be.
I’m hopeful for the outcome of this case. The legal team on our side is presenting strong arguments and seems to have the momentum. They are adept and well-prepared, and in Ted Olson and David Boies we have the advocacy of two of the most brilliant legal minds in our country.
Still, we must keep working to build support for LGBT equality, including marriage and many other priorities, such as federal employment protection, access to culturally competent health care, and safe schools and safe communities where our youth can grow up. We can’t just win in the courts. We have to win hearts and minds across California and the nation. Please, join us in our efforts.

Why I’m Joining the Fight for Marriage Equality
By Margaret Hoover
- FOXNews.com
If you are uncomfortable with gay marriage, I encourage you to pay attention to the landmark civil rights trial which began this week in California.
This week a landmark civil rights court case began in California.  The federal trial Perry v. Schwarzeneggerchallenges the constitutionality of California’s Proposition 8 ban on gay marriage.  Two couples argue that they have a constitutional right to marry, and that California’s law denies them due process and equal protection under the 14th Amendment, relegating them second-class citizens.
You may think, “San Francisco liberals at it again! Hijacking the courts, inventing new constitutional rights!”  Stop there.  The lead counsel in the case is George W. Bush’s Solicitor General, who successfully argued Bush v. Gore before the Supreme Court in one of his fifty-five performances before the nation’s highest judicial body. He is Theodore “Ted” Olsen, a founder of the Federalist Society, constitutional law expert, and one of the most respected conservatives in America.
Mr. Olsen thinks constitutionally guaranteed rights ought to transcend left vs. right, Democrat vs. Republican divides (he even recruited legal opponent David Boies as co-counsel).  I agree with him.  And as a proud Republican representing a younger generation of conservatives that cherish individual freedom, I am honored to join the American Equal Right’s Foundation’s Advisory Board.
I encourage everyone, but especially Republicans, to consider Mr. Olsen’s arguments on the merits, both in hisopening statement and throughout the trial’s ensuing three weeks.   The plaintiff’s counsel seeks to convince Judge Vaughn R. Walker that the Supreme Court has already decided in Loving v. Virginia, Turner v. Safely, and in Lawrence v. Texas among others, that the right to marry is a fundamental right currently denied to an entire class of American citizens.  This is unconstitutional.
We Republicans have often found ourselves on the wrong side of civil rights struggles since the 1960s, but there was a reason that Martin Luther King, Jr.’s father is said to have supported Republicans.
Republicans were historically the party ever-expanding freedom to disenfranchised minorities, from newly liberated slaves to giving women the right to vote.  Susan B. Anthony was a Republican. By supporting the AFER trial we have an opportunity to establish our historic credibility on civil rights issues once again.  But we should support marriage equality because it is the right thing to do.
Gays and lesbians are our friends, neighbors, doctors, colleagues, sisters and brothers.  Does it sit well with you that because of their sexual orientation, a factor outside one’s control, that they should have less rights and protections in the eyes of the law?  While increasing acceptance of gays marks my generational experience—Ellen DeGeneres is welcomed into the living rooms of millions of Americans daily, an impossibility in even my childhood— many who are older than me fear that if gays and lesbians can marry, what’s next?  They worry that homosexual marriage degrades the integrity of heterosexual marriage.  They fear that their children might be exposed to alternative lifestyles that will impact them negatively, or argue that the purpose of marriage is procreation.  If you are uncomfortable with gay marriage, I encourage you to pay attention to this trial, the plaintiffs, the defense and the spectrum of experts, historians, psychologists, economists, political scientists, who will testify as to the effects and detriment of Proposition 8.  In the words of NAACP chairman Julian Bond, “The humanity of all Americans is diminished when any group is denied rights granted to others.”
Some Republicans support gay rights, but prefer progress through legislative action or majority rule at the ballot box, rather than judicial action.  But what if a democratic election imposes mandates that violate a citizen’s constitutional freedom?  In the event that majority rule insufficiently protects individual liberty, our system of checks and balances puts forth that it is the role of the courts, to guarantee and protect the rights to individual Americans.
That’s why the Supreme Court, in 1967 Loving v. Virginia, legalized interracial marriage –six years after our current president was born to an interracial couple.  At that time 73% of the population opposed “miscegenation.”  How long would it have taken to change popular opinion, for the minority to democratically win their constitutional rights? As Martin Luther King, Jr. famously asserted, “Justice delayed is justice denied.”
For those of you who would label me a “RINO” (Republican In Name Only) for taking this stand, I direct you to Vice President Cheney, whose conservative credentials are impeccable, and who answered a question on the topic before the National Press Club audience on June 1, 2009 by saying simply, “…freedom means freedom for everyone.”
Please visit Facebook page Republicans for Marriage Equality and American Equal Rights Foundation to follow the details of the trial.

An Odd Couple Defends Couples That Some (Oddly) Find Odd
By Maureen Dowd
Published: January 16, 2010
San Francisco
It has been quite a journey for Ted Olson. He’s gone from being the conservative lawyer who helped crown W. by winning the Bush v. Gore case before the Supreme Court, to being a lesbian.
“Maureen,” he told me in his gravelly voice, “one of the biggest lesbian groups in this country told me I’m already an honorary lesbian.”
Did it make you feel different, I wondered.
“I still like women very much,” he wryly replied, as his biking pal, liberal adversary and now co-counsel David Boies laughed, snacking on a crust of sourdough bread in their temporary office on Mission Street.
In 2000, Olson and Boies sparred with each other in Washington over which candidate would marry the country. Now they have joined forces here to spar with Prop 8 defenders over who can marry.
“Ted Olson and David Boies, so what are they up to?” Olson laughed, summarizing the confusion and conspiracy theories that their union inspired.
As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: “We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.”
Boies, wearing a flag pin on his lapel, said that the state of California is engaged in “gay bashing.” He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: “These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.”
Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: “Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.”
I asked Olson if he misted up, as many in the courtroom did, when Jeff Zarrillo, a 36-year-old manager at AMC Entertainment, testified that he loved his partner “probably more than I love myself.”
“Yes,” Olson replied, noting that he finds himself getting weepy a lot, including when a bright lawyer in his Washington law firm approached him in the library to tell him she was a lesbian mother of two and she was grateful to him.
“I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,” he said. “We’re not treating them like Americans. We’re not treating them like citizens.”
Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. (Although this judge, a libertarian-tilting George H. W. Bush appointee, Vaughn Walker, who likes to hire magicians for the court’s annual dinner, has been so accommodating to their side that Ed Meese complained he was tilting the case.)
“I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,” Boies said. “It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.”
The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience “weakens our moral fiber in this country.”
While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.
I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.
“Damned right,” Boies snapped. “I hope my Democratic president will catch up to my conservative Republican co-counsel.”
Olson added: “I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’”
Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about.

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