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Rob Tisinai

February 21st, 2013

I’ve just finished reading the introduction of Olson and Boies’ Supreme Court brief against Prop 8. I’m so certain you’d love it that I’m reprinting the whole section here. For readability’s sake I’ve removed all but two of the legal citations. You can find those in the original.

This case is about marriage, “the most important relation in life,” a relationship and intimate decision that this Court has variously described at least 14 times as a right protected by the Due Process Clause that is central for all individuals’ liberty, privacy, spirituality, personal autonomy, sexuality, and dignity; a matter fundamental to one’s place in society; and an expression of love, emotional support, public commitment, and social status.

This case is also about equality. After a $40 million political campaign during which voters were urged to “protect our children” from exposure to the notion that “gay marriage is okay,” and “the same as traditional marriage,” and thus deserving of equal dignity and respect, Proposition 8 engraved into California’s constitution the cardinal principle that unions among gay men and lesbians are not valid or recognized as marriages, and therefore second-class and not equal to heterosexual marriages. Proposition 8 thus places the full force of California’s constitution behind the stigma that gays and lesbians, and their relationships, are not “okay,” that their life commitments “are not as highly valued as opposite-sex relationships,” and that gay and lesbian individuals are different, less worthy, and not equal under the law. That “generates a feeling of inferiority” among gay men and lesbians—and especially their children— “that may affect their hearts and minds in a way unlikely ever to be undone.” Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954).

Proponents accuse Plaintiffs (repeatedly) of “redefining marriage.” But it is Proponents who have imagined (not from any of this Court’s decisions) a cramped definition of marriage as a utilitarian incentive devised by and put into service by the State—society’s way of channeling heterosexual potential parents into “responsible procreation.” In their 65-page brief about marriage in California, Proponents do not even mention the word “love.” They seem to have no understanding of the privacy, liberty, and associational values that underlie this Court’s recognition of marriage as a fundamental, personal right. Ignoring over a century of this Court’s declarations regarding the emotional bonding, societal commitment, and cultural status expressed by the institution of marriage, Proponents actually go so far as to argue that, without the potential for procreation, marriage might not “even..exist[ ] at all” and “there would be no need of any institution concerned with sex.” (internal quotation marks omitted). Thus, under Proponents’ peculiar, litigation-inspired concept of marriage, same-sex couples have no need to be married and no cause to complain that they are excluded from the “most important relation in life.” Indeed, Proponents’ state-centric construct of marriage means that the State could constitutionally deny any infertile couple the right to marry, and could prohibit marriage altogether if it chose to pursue a society less committed to “responsible” procreation.

This, of course, reflects a complete “failure to appreciate the extent of the liberty at stake,” not to mention matters such as love, commitment, and intimacy that most Americans associate with marriage. As Proponents see it, marriage exists solely to serve society’s interest; it makes no sense to speak of an individual’s right to marry.

Proponents view this case as a referendum on whether the institution of marriage should exist in the first place, focusing almost exclusively on why it makes sense for the States to grant heterosexuals the right to marry. But this case is not about whether marriage should be abolished or diminished. Quite the contrary, Plaintiffs agree with Proponents that marriage is a unique, venerable, and essential institution. They simply want to be a part of it—to experience all the benefits the Court has described and the societal acceptance and approval that accompanies the status of being “married.”

The only substantive question in this case is whether the State is entitled to exclude gay men and lesbians from the institution of marriage and deprive their relationships—their love—of the respect, and dignity and social acceptance, that heterosexual marriages enjoy. Proponents have not once set forth any justification for discriminating against gay men and lesbians by depriving them of this fundamental civil right. They have never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry. Indeed, the only harms demonstrated in this record are the debilitating consequences Proposition 8 inflicts upon tens of thousands of California families, and the pain and indignity that discriminatory law causes the nearly 40,000 California children currently being raised by same-sex couples.

The unmistakable purpose and effect of Proposition 8 is to stigmatize gay men and lesbians—and them alone—and enshrine in California’s Constitution that they are “unequal to everyone else,” that their committed relationships are ineligible for the designation “marriage,” and that they are unworthy of that “most important relation in life.” Neither tradition, nor fear of change, nor an “interest in democratic self-governance,” can absolve society, or this Court, of the obligation to identify and rectify discrimination in all its forms. If a history of discrimination were sufficient to justify its perpetual existence, as Proponents argue, our public schools, drinking fountains, and swimming pools would still be segregated by race, our government workplaces and military institutions would still be largely off-limits to one sex—and to gays and lesbians, and marriage would still be unattainable for interracial couples. Yet the Fourteenth Amendment could not tolerate those discriminatory practices, and it similarly does not tolerate the permanent exclusion of gay men and lesbians from the most important relation in life. “In respect of civil rights, all citizens are equal before the law.” Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).



February 21st, 2013 | LINK

I’ll read the whole thing. It’s only 40 some pages of actual argument to be honest. I can read that in no time.

February 21st, 2013 | LINK

AFER posted the whole brief, which I will read.

This introduction was quite . . . well, I can’t find the word . . . except “thank you” Mr. Olson and Mr. Boies. I’m so glad you’re on our side.

Ben In Oakland
February 21st, 2013 | LINK

One thing, and it may just be me.

I would like to see the idea that marriage allows the legal formation of family and next of kinship emphasized.

February 21st, 2013 | LINK

The full document is worth reading. It is refreshing to see such an articulate description of discrimination and how it is impossible to square with a just society.

Priya Lynn
February 21st, 2013 | LINK

Ben said “I would like to see the idea that marriage allows the legal formation of family and next of kinship emphasized.”.

I agree. Marriage is a way for me to say my relationship with my husband is my primary relationship and he comes before any blood relatives of mine and if I should become incompacitated he makes decisions on my behalf and no one else.

February 21st, 2013 | LINK

@BeninOakland and Priya Lynn State marriage laws generally cover those matters, so it automatically comes with marriage equality.

I learned not long ago, though, that the marriage laws in my state do not automatically name the spouse as the health care agent / power of attorney / decision-maker in case of incapacitation. It is clear the spouse is next of kin for inheritance, but not for health care decisions.

My personal attorney advised me to name a health care agent who is not my spouse. This also covers decision making if both spouses are incapacitated at the same time, such as in an accident. A hospital will generally rely on a spouse or adult child, but only a designated health care agent has clear legal authority.

Priya Lynn
February 21st, 2013 | LINK

I’ll have to check into it jpeckjr. The last thing I want is my family making any decisions for me.

February 21st, 2013 | LINK

Florida doesn’t automatically designate power of attorney or health care agent with marriage. I just found that out last week. I was shocked.

As for the brief: HEAR, HEAR!

February 21st, 2013 | LINK

We’re going through this process now. Even for a heterosexual couple–with full, universal marriage rights–a Living Will, Health Care Proxy, and Durable POA are a “holy trinity” of documents that every person should have. It varies by state, but you really need these.

February 22nd, 2013 | LINK

The living will, health care proxy, P of A, etc are essential for everyone. And in NY the forms were changed a couple of years back so it might be a good idea to refresh yours if you live here and haven’t already done that. I have all our forms in a folder which goes with us whenever we travel.

February 23rd, 2013 | LINK

The Shiavo mess was in Florida. Here’s a link to a discussion of this spouse vs. parents’ rights in the case of Terri Shiavo, who’d been (brain) dead from 1998 to 2005: Terri’s spouse should have had the right to disconnect life support for his spouse, but her parents decided that they had the ultimate say with regards to Mrs. Shiavo. And, as we all know, the entire country and the federal government of the U. S. got involved before the poor woman was finally allowed to die in dignity and in peace.

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