American Foundation for Equal Rights

Prop. 8 Unconstitutional, Closing Arguments State


For Plaintiffs, Theodore Olson Demonstrates Prop. 8’s Denial of Equal Protection Under the Law

See Trial Summary at

Transcripts, Other info at

Theodore Olson today delivered closing arguments on behalf of the plaintiffs in the Perry v. Schwarzenegger case, the landmark trial over Proposition 8, which unconstitutionally denies equal protection under the law (see excerpts below).

The American Foundation for Equal Rights brought together Olson and David Boies, who notably faced-off in Bush v. Gore, to demonstrate that Prop. 8 violates Americans’ U.S. 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. Prop. 8 unconstitutionally stripped away the right of same-sex couples to marry in California .

“For Kris and I, this case for us is about how we, as Americans, just want to be treated equally by our government,” said plaintiff Sandy Stier, who with Kris Perry comprise one of the couples who are plaintiffs in the case. Stier spoke at the courthouse immediately before going inside this morning.

“All we’re asking the court to do is make sure we’re protected under our Constitution like everyone is supposed to be,” said plaintiff Jeff Zarrillo before entering the courthouse with Sandy, Kris and Paul Katami.

“This trial clearly demonstrated Proposition 8’s denial of equal protection under the law,” said Chad Griffin , Board President of the American Foundation for Equal Rights. “No law may violate the U.S. Constitution. Our nation’s Founders established the courts to protect every American’s constitutional rights against discriminatory laws. This case is not about special rights for Kris, Sandy, Paul and Jeff. Rather, it’s about ensuring they simply have the same rights as every American.”


  • “They merely wish for themselves the status the State of California accords to their neighbors, their friends, their coworkers and their relatives,” Olson said in court of the plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo and those also affected by Proposition 8. “The Supreme Court said the right to equal protection of the laws is the protection of equal laws.”
  • “We conclude this trial, your honor, where we began. This case is about marriage and equality. The fundamental constitutional right to marry has been taken away from the plaintiffs, and tens of thousands of similarly situated Californians. Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized and second rate,” Olson said in court today. “There is not a compelling governmental interest to put  the plaintiffs in a class like this and take away what the  Supreme Court has called a fundamental right, a right of  liberty, privacy, association, intimacy and autonomy.”
  • “Our fundamental rights can’t be taken away unless the state has a very, very fundamental, strong, compelling reason to do so and acts with surgical precision so that it takes no more than the compelling reason justifies,” Olson said in court.
  • “Their state has stigmatized them as unworthy of marriage, different, and less respected,” Olson said in court of plaintiffs Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo and those also affected by Proposition 8.
  • “This is discrimination, the taking away from a fundamental right as articulated by the Supreme Court,” Olson said in court of Proposition 8, later adding that since 1888 no less than 14 Supreme Court rulings have recognized marriage as a fundamental right.
  • “The Supreme Court has said that marriage is the most important relation in life.  Now that’s being withheld from the plaintiffs,” Olson said in court. “Marriage, the Supreme Court has said again and again, is a component of liberty, privacy, spirituality and autonomy.”
  • “[Prop 8.] prevents a complete choice as to marriage and designates gays and lesbians as less worthy and entitled to less honor, less status and fewer benefits.  Marriage is special, the experts tell us. Domestic partnerships and civil unions are pale comparisons,” Olson said in court.
  • “This law is discriminatory. The evidence is overwhelming that it imposes great social harm on individuals who are our equals. They are members of our society.  They pay their taxes. They want to form a household. They want to raise their children in happiness and in the same way that their neighbors do. We are imposing great damage on them by the institution of the State of California saying they are different and they cannot have the happiness, they cannot have the privacy, they cannot have the liberty, they cannot have the intimate association in the context of a marriage that the rest of our citizens do,” Olson said in court.

The plaintiffs in the case want to be married but cannot because of Prop. 8.

Kris and Sandy have been together for more than ten years and their family includes four boys. Both are in public service — Kris leads a childhood health and education agency and Sandy works for a county health department. Their home life centers around their kids, with PTA meetings, soccer and music lessons taking up much of their free time.

Paul and Jeff have been together for nine years. Jeff is a general manager for a movie theater company and Paul is a business owner. They own a home together and are proud uncles. The powerful testimony of the plaintiffs, along with the presentation of 17 witnesses and revealing cross-examination of the defendant-intervenors’ witnesses, clearly exposed the unconstitutionality of Prop. 8. A summary of the trial is available at:

See key articles at, including house editorials from the New York Times and Los Angeles Times, as well as further discrediting of the defendant-intervenors’ star witness.

Last week, John Podesta, head of the progressive Center for American Progress, and Robert Levy, head of the libertarian Cato Institute, were named c0-chairs of the American Foundation for Equal Rights Advisory Boad, which also includes NAACP Chairman Julian Bond, UFW Founder Dolores Huerta and FOX News Commentator Margaret Hoover. See the Podesta-Levy Washington Post Op-Ed here:

This unprecedented federal court challenge was filed in May 2009, with both sides presenting their cases in court from January 11 to January 27. Since then, Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, has been analyzing the evidence, testimony, and briefs.

Leading civil rights organizations, legal scholars, doctors, scientists, and religious organizations have filed amicus briefs in support of the plaintiffs, including: the California NAACP, Mexican American Legal Defense & Educational Fund (MALDEF), Asian Law Caucus, National Black Justice Coalition, South Asian Bar Association of Northern California, ACLU, Lambda Legal Defense and Education Fund, National Center for Lesbian Rights, retired California Court of Appeal Justice Donald King, family law professors from across the state, American Anthropological Association, American Psychoanalytic Association, National Association of Social Workers, and the American Academy of Pediatrics California Chapter.


“More than 30 years ago, the United States Supreme Court recognized that marriage is one of the basic rights of man,” the suit against Prop. 8 states, referring to the Court’s decision in Loving v.Virginia, which struck down bans on interracial marriage.

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