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Perry: the rebuttal to the appeal

Timothy Kincaid

October 26th, 2010

Perry v. Schwarzenegger is about whether California’s Proposition 8 was in violation of the US Constitution… but not really. That’s just the issue. Perry is about something much larger. And it is in the opening paragraphs of the plaintiffs’ rebuttal to appeal (pdf) that this is so eloquently made clear:

This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

Perry is a question about marriage, but the real question, the one that drives the motivations behind Proposition 8 and all of the anti-gay activists, is whether the US Constitution also covers gay people or whether the words “any person” contains an invisible asterisk that references a special exclusion.

This battle, like that over DADT, adoption, and all of the other areas in which gays are segregated and excluded is a battle over whether gay people will be seen as full citizens, or whether the “normalization of homosexuality” is so great a threat that the equality principles enshrined in our founding documents have to be discarded or ignored.

Ted Olson’s response to appeal is as much a stirring call to uphold our values as a people as it is a legal argument. Yes, his logic is sound and his legal reasoning is beyond reproach (and amazingly easy for a lay person to understand); but it is his reminder of why we believe what we believe that makes this document such a great read.

The purpose of the Proponents is not, as they suppose, to protect some idealized institution of marriage. Rather, it is to further and support the culture of disapproval of homosexuality and to do so by carving out an exclusion from the protections afforded by the Constitution. But this is not just a “social discussion” or a “moral position” without direct and dire consequences. As Olson concludes:

Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay. A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay. Incidents such as these are all too familiar to our society.

And it is too plain for argument that discrimination written into our constitutional charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic.



October 26th, 2010 | LINK

Olson is so wonderfully eloquent


October 26th, 2010 | LINK

Hopefully Olson’s argument will sway Kennedy and his two new fellow justices. I really foolishly hoped even Scalia or Roberts might be swayed by the efficacy of his argument but it’s clear their ideology will trump everything else.

Oh, and welcome back!

October 26th, 2010 | LINK

“Moreover, because Proponents concede that gay men and lesbians have faced
a history of discrimination, see SER 302, they find themselves in the untenable position
of arguing that sexual orientation is sufficiently “definable” to serve as a basis for
discrimination, but insufficiently definable to protect gay men and lesbians from that
same discrimination.”

How can people like this live with themselves?

October 26th, 2010 | LINK

I have lived in this country for 49 years, most of it an out gay man (since 17) and an activist form most of that time. I have never seen any legislation at the federal level giving us rights to stop the bigotry spewed by many on the right. I support AFER and other organizations who are laying the foundation for our equality, something our fierce advocate and the cowards in Congrss have failed to do. That is why I have decided not to vote in federal elections any longer. Politicos are of no use to me and the LGBTQ community and have proven it over and over again.

October 27th, 2010 | LINK

Don’t dismiss Roberts yet. He did pro-bono work in Romer v Evens for the plaintiffs and he also refused the stay of the DC gay marriage law with the trial over a referendum pending.

Kennedy will side with us though. He’s very consistent with gay rights cases.

October 27th, 2010 | LINK

(exhaling) Welcome back, Timothy. You were missed.

Ben in Oakland
October 27th, 2010 | LINK

Thank you Mr. Olson, for pointing out the obvious.

October 27th, 2010 | LINK

“normalization of homosexuality”

There is no requirement of “normality” in the Constitution.

Victor, Excellent quote.

Mykelb, I have long held the contention that our rights must be gained via the courts, not via the Legislatures that are beholding to the majorities.

October 27th, 2010 | LINK

I have no patience with individuals who choose to voice their opinion in public spaces, but not in the ballot box. I have voted in every election for which I was eligible to vote, even when I felt that I couldn’t vote for any of the listed candidates. If someone can’t be bothered enough to go to the poll, ask for a write-in ballot, and write in something along the lines of “not one of the listed candidates is acceptable to me,” I request that they not waste *my* time with their “not so important” opinion.

October 27th, 2010 | LINK

Mykelb wrote:

“I have never seen any legislation at the federal level giving us rights to stop the bigotry spewed by many on the right.”

The Fairness Doctrine used to do this, up until 1987, by ensuring that the radio-listening public at least had the opportunity to hear other points of view. It’s no coincidence that right wing extremism has become worse in the last twenty years, as there are now large segments of the public that are exposed to nothing else.

Your congressperson, if a liberal or centrist, may be able to be persuaded to take this issue seriously — especially if he or she is worried about being replaced by someone like Christine O’Donnell.

October 28th, 2010 | LINK

@ Craig, I have voted in every election since I was eligible (1980). What has it gotten me? DADT, DOMA, Prop 8, 30 state bans on my marriage, etc.,etc., etc. Why should I waste another breath on these people, much less a thought? They have done absolutely zero for LGBT equality for over 40 damn years.

I am emigrating to Canada as soon as I retire. I don’t want to spend my golden years worrying about whether or not I can visit my husband in the hospital, whether my home will be confiscated by the government if he dies, and all the rest of the horrible things that happen to older gay couples in the U.S. F*ck that.

Donny D.
October 29th, 2010 | LINK

After getting a little way into the Plaintiffs’ brief against the appeal, I just HAD to get hold of the Defendant-Interveners’ appeal brief, which I found here:

In its own pathetic way it’s quite entertaining, especially when read side by side with the Plaintiffs’ brief.

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