For Immediate Release / June 15, 2010

Contact: Yusef Robb yusef@equalrightsfoundation.org 323-384-1789

OLSON/BOIES ANSWER COURT’S QUESTIONS

39 Questions Asked By Court Last Week Answered In Writing

Closing Arguments Wed. June 16 Followed by Press Conference After Court

See Trial Summary at: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

See complete court filing of answers at: http://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-to-courts-questions-for-closing-arguments/

In advance of delivering closing arguments on Wednesday, June 16 in the Perry v. Schwarzenegger trial, the plaintiffs’ legal team led by Theodore Olson and David Boies submitted answers today to the 39 questions posed by the court last week.

The American Foundation for Equal Rights brought together Olson and Boies, who notably faced-off in Bush v. Gore, to demonstrate that Proposition 8 violates Americans’ Constitutional rights by creating separate classes of people with different laws for each, in conflict with the nation’s founding principles, including equal protection under the law. Proposition 8 unconstitutionally stripped the right of same-sex couples to marry in California.

“Neither tradition nor moral disapproval is a sufficient basis for a State to impair a person’s constitutionally protected right to marry,” their answers state. “Tradition alone is not enough because the constitutional imperatives of the Equal Protection clause must have priority over the comfortable convenience of the status quo.”

“If a state constitutional provision is inconsistent with the Fourteenth Amendment of the U.S. Constitution, it can no longer be given effect—regardless of its level of public support,” their answers continue. “Whether or not Prop. 8 was motivated by discriminatory animus, it is unconstitutional because it facially discriminates on the basis of sexual orientation and sex.”

“While Proponents speculate that permitting same-sex couples to marry could result in a parade of horribles, when asked point blank, their lead counsel admitted that Proponents ‘don’t know’ whether allowing same-sex couples to marry would harm heterosexual relationships.”

“The campaign employed some of the most enduring anti-gay stereotypes—many of which reflect messages from prior anti-gay campaigns—to heighten public apprehension, including messages that gay men and lesbians recruit and molest children, that gay and lesbian relationships are immoral or bad and should be kept ‘private’ and that there is a powerful gay ‘lobby’ or ‘agenda’ intent on destroying heterosexual families and denying religious freedom.”

Some additional excerpts:

• “The issues that the Supreme Court confronted in a number of its most significant equal protection cases were the subject of widespread public debate at the time of the Court’s decision (see, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954); Loving, 388 U.S. 1)—but such debate did not cause the Court to hesitate when invalidating discriminatory legislation. This holds true whether the Court applies strict scrutiny, intermediate scrutiny, or rational basis review.”

• “Excluding individuals of the same sex from the institution of marriage harms Plaintiffs, their children, and hundreds of thousands of other gay men and lesbians (and their families) throughout California. Allowing gay men and lesbians to marry harms no one. … Tellingly, Proponents presented no evidence whatsoever that the 18,000 same-sex marriages that took place between the California Supreme Court’s decision in the Marriage Cases and the passage of Prop. 8 have harmed Proponents or anyone else.”

• “There is no evidence in the record to suggest that Prop. 8 is even rationally related to a legitimate government interest—let alone, substantially related to an important government interest or narrowly tailored to further a compelling government interest. To the contrary, Prop. 8 causes irreparable harm to gay men and lesbians and their families, and is fundamentally discriminatory.”

• “Thus, just as the plaintiffs in Loving v. Virginia, 388 U.S. 1 (1967), were not asking the Supreme Court to recognize a new right to interracial marriage, Plaintiffs here are not asking this Court to recognize a new fundamental right to same-sex marriage. They are instead seeking access to an existing constitutional right that has long been denied to gay men and lesbians. The mere longevity of those discriminatory and irrational restrictions on the right to marry is a constitutionally inadequate ground for continuing to exclude gay men and lesbians from this ‘vital personal right.’”

• “The public debate about authorizing marriage between individuals of the same sex has no bearing on the legal issue before the Court on Plaintiffs’ equal protection claim: Whether Prop. 8 unconstitutionally discriminates against gay men and lesbians in violation of the Fourteenth Amendment. The fact that some segment of the population may strongly support a discriminatory measure—and may be engaged in a public debate on the issue—cannot conceivably shield the law from the requirements of equal protection. The issues that the Supreme Court confronted in a number of its most significant equal protection cases were the subject of widespread public debate at the time of the Court’s decision (see, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954); Loving, 388 U.S. 1)—but such debate did not cause the Court to hesitate when invalidating discriminatory legislation. This holds true whether the Court applies strict scrutiny, intermediate scrutiny, or rational basis review.”

• “The passage of Prop. 8 has resulted in a crazy quilt of marriage regulations that involves five categories of citizens: (1) opposite-sex couples, who are permitted to marry, and to remarry upon divorce; (2) the 18,000 same-sex couples who married after the California Supreme Court’s decision in the Marriage Cases but before the enactment of Prop. 8, whose marriages remain valid but who are not permitted to remarry if divorced or widowed; (3) unmarried same-sex couples, who are prohibited by Prop. 8 from marrying and restricted to the status of domestic partnership; (4) same-sex couples who entered into a valid marriage outside California before November 5, 2008, who are treated as married under California law, but not permitted to remarry upon divorce; and (5) same-sex couples who entered into a valid marriage outside California on or after November 5, 2008, who are granted the rights and responsibilities of marriage, but not the designation of ‘marriage’ itself.”

See complete court filing of answers at: http://www.equalrightsfoundation.org/legal-filings/plaintiffs-response-to-courts-questions-for-closing-arguments/

See Trial Summary at: http://www.equalrightsfoundation.org/press-releases/perry-v-schwarzenegger-trial-summary/

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