The historic federal trial challenging the constitutionality of same-sex marriage bans commenced in California today, focusing on Proposition 8, which state voters approved last year. David Boies and former Bush solicitor general Ted Olson, who argued opposite each other in the Bush v. Gore case, are now arguing together on behalf of the two couples who wished to be married but were denied marriage licenses because of Prop. 8. In his opening statement, Olson, President Bush’s former Solicitor General, went right after common right-wing arguments against marriage equality:
And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples. Needless to say, guesswork and speculation is not an adequate justification for discrimination. In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.
When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry. Parents were urged to “protect our children” from that presumably pernicious viewpoint.
At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.
Today in Newsweek, Olson makes the “conservative case for gay marriage,” stating that “same-sex unions promote the values conservatives prize” and saying that arguments against same-sex marriage are “superficially appealing but ultimately false perceptions about our Constitution and its protection of equality and fundamental rights.”