Live Blog Archive
Wrapping up Olson’s argument
Judge Walker asks whether standard of review is different in due process and equal protection. Olson says no, standard of review is the same.
Walker: If prop 8 is unconstitutional where does that leave the domestic partnership laws?
Olson: Right where they were before. If people want to have a business relationship they can enter a domestic partnership. It is the people who don’t have the right who understand how harmful it is. The state of California can have relationships between all kinds of persons. No one aspires as a child to grow up and enter into a domestic partnership but they do aspire to be married. You don’t have a celebration when you have a domestic partnership. There was so much said about the meaning and significance of marriage.
The Supreme Court said in Zablocki that the right to marry is fundamental to all individuals.
Due process part—whether you are applying strict scrutinty, or heightened scrutiny—one is exhaustive and one is called serious—or whether it is called rational basis, on all these bases whatever the proponents wanted to accomplish it isn’t being accomplished. The latest word is we don’t know if there is going to be any harm. We’ve always done it that way. This is the tradition is the corollary to the “because I say so.” It’s not a reason. You can’t have discrmination in public schools because you’ve always done it that way. (Olson offers another race example. Pushing the race analogy hard.)
Heterosexual people are not going to stop getting married or stop having children, because their neightors are in a same-sex marriage. Netherlands evidence folded before our eyes.
Cott says marriage rates and divorce rates have not changed in Mass. Stats in Netherland don’t show a change.
To the extent there is a weakening of the bonds of marriage because of no-fault divorce -- and one of our expert witnesses said marriage rates fell off, divorce rates increased -- those were heterosexual people, it had nothing to do with same-sex marriage. That was a false premise.
Walker: Can’t ordinary citizens use their own judgement about this?
Olson: I hate the term ordinary citizen, because I think every citizen is special. Yes citizens can use common sense. But what was their common sense in this case? I don’t think I know as a result of the case. I don’t believe it is because of the institution of marriage, or the procreation. That’s not what it is. There is no evidence that one couple or pair of couples will decide I’m not getting married because those people will get married. No evidence there will be a diminished procreative instinct—God forbid because people are allowed in the privacy of their homes to enter into an intimate relationship. What were they thinking? Protect our children from being taught that gay marriage okay? That means gay people are not okay. If there is a reason for why Prop 8 serves a legitimate purpose, we’ve got to enquire about what the reason is—and whether the enactment advances that reason and how does Prop 8 advance it.
We don’t know what that reason is, whatever it cannot be a post hoc.
Walker: Do I have to find a discriminatory motive? Say, some private morality drove the iniative?
Olson: Lawrence talks about private morality as a illegitimate basis. I am saying that irrespective of the motive of a particular person in the room. Nice people voted for Prop 8 and people who didn’t have nice motives voted for Prop 8. Some awful stuff being told to people about gay people. Plenty of good Californians voted for gay marriage because they are uncomfortable with gay people entering marriage and uncomfortable with the idea that gay people are just like us. They didn’t hear the evidence of what the psychologist and the psychiatrist said about this is a normal characteristic between individuals and it is not someone engaged in bad conduct.
You can have a religious view that this is not acceptable. This was true in the Loving case. The argument was made that this is God’s will. It’s in the brief. They honestly felt it was wrong to mix the races.
I think, your honor, this law is discriminatory. Th evidence is overwhelming that it imposes great social harm on individuals who are members of our society. They pay their taxes; they want to form a household, they want to raise their children in happiness the same way their neighbors do. We are imposing great damage on them by the institution of the State of California saying: they are different. They cannot have the liberty, the happiness, the intimate association the rest of our citizens do. We have demonstrated that causes grave irreparable harm, we are withholding them the institution of marriage—intimacy to the point of being sacred—that right of marriage we are withholding that from them and hurting them and doing no good. If we had a reason, that might be another matter, but there is no reason I heard.
We’ve improved the institution of marriage when we didn’t put racial barriers. We will improve the institution when we remove the barriers to ssm.
It will not hurt Californians; it will benefit Californians to remove harmful stigma form their constitution.
Thank you.
Comments