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What's at stake: The strawmen martyrs that they've propped up as 'victims'

by Jeremy Hooper

This is how the ferociously 'mo-hostile lawyers at the Alliance Defense Fund sum up the "stakes" in the federal Prop 8 trial:

A federal court decision overturning Proposition 8 may not only eliminate Californians’ right to reaffirm marriage in the state constitution, but may ultimately nullify marriage laws in 45 states, including the 30 states in which voters adopted state constitutional amendments, and the federal Defense of Marriage Act passed by Congress in 1996. Also at stake is...
• Whether voters can collectively decide through the democratic process that marriage between one man and woman should be protected.
• Whether Americans will be forced to forfeit the core of their democracy by allowing a small group of wealthy activists to impose their will on a state or an entire nation.
• Whether marriage will remain a unique institution that promotes the important interests of children and society or be transformed into nothing but a legal arrangement based only on the desires of the adults involved.
• Whether voters may freely consider their own moral and religious views about marriage—or any other subject—when casting their ballots or be forced by violence and intimidation to remain silent about their deepest convictions.

Schwarzenegger v. Perry "Fact Sheet" [ADF]

It's weird that we didn't hear one thing in these bullet points about tax-paying gay and lesbian citizens, their high court-backed civil rights, and the protection of those rights from personal religious biases. Bizarre that there's not one acknowledgement of the considerable stakes that the rejection of rights behind a bare majority vote poses to LGBT families, their children, pro-gay people of faith, equality-minded businesses, and just about anyone who realizes that this nation is strengthened by its diversity. And it's odd that there not even a mention of same-sex couples who either married in the Prop 8 window (without incident), or the countless who now can't. Because aren't gay people kind of a key point in this whole "gay marriage" thing?!

Must have been an oversight, right ADF? And by "oversight," we mean: "Continued and deliberate disinformation put forth by the "pro-family" side, so as to muddy the waters of this civil rights debate in a way that paints them, the fomenters of bias, into the mirage of victimhood."


*UPDATE: For another (read: actually representative, genuinely considered) perspective, check out Ted Olson's opening statement from today:

Text of Ted Olson’s Opening Statement in Prop. 8 Trial – As Prepared
January 11, 2010
[American Foundation for Equal Rights]

The federal trial over the unconstitutionality of Proposition 8 began
today with an opening statement by attorney Theodore Olson, who with
David Boies is leading the legal team assembled by the American
Foundation for Equal Rights to litigate the case Perry v.
Schwarzenegger. Opening statements will be followed by testimony from
Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise
two couples who wish to be married but who were denied marriage
licenses because of Proposition 8.

After the opening statement David Boies gave the direct examination of
Jeff Zarrillo and Paul Katami.

(as prepared)

This case is about marriage and equality. Plaintiffs are being denied
both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the
right to marriage as “one of the vital personal rights essential to
the orderly pursuit of happiness by free men;” a “basic civil right;”
a component of the constitutional rights to liberty, privacy,
association, and intimate choice; an expression of emotional support
and public commitment; the exercise of spiritual unity; and a
fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is
“the most important relation in life,” and “of fundamental importance
for all individuals.”

As the witnesses in this case will elaborate, marriage is central to
life in America. It promotes mental, physical and emotional health
and the economic strength and stability of those who enter into a
marital union. It is the building block of family, neighborhood and
community. The California Supreme Court has declared that the right
to marry is of “central importance to an individual’s opportunity to
live a happy, meaningful, and satisfying life as a full member of

Proposition 8 ended the dream of marriage, the most important relation
in life, for the plaintiffs and hundreds of thousands of Californians.


In May of 2008, the California Supreme Court concluded that under this
State’s Constitution, the right to marry a person of one’s choice
extended to all individuals, regardless of sexual orientation, and was
available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that
decision with Proposition 8, amending the State’s Constitution and, on
the basis of sexual orientation and sex, slammed the door to marriage
to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to
equality and due process under our Constitution. They are in deeply
committed, intimate, and longstanding relationships. They want to
marry the person they love; to enter into that “most important
relation in life”; to share their dreams with their partners; and to
confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept
away their right to marry, pronounced them unequal, and declared their
relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of
individuals to marry a same-sex partner relegated those individuals to
“second class” citizenship, and told them, their families and their
neighbors that their love and desire for a sanctioned marital
partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of
history, psychology, economics and political science will prove three
fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry,
Proposition 8 works a grievous harm on the plaintiffs and other gay
men and lesbians throughout California, and adds yet another chapter
to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable,
discriminatory harm for no good reason.



Plaintiffs will present evidence from leading experts, representing
some of the finest academic institutions in this country and the
world, who will reinforce what the highest courts of California and
the United States have already repeatedly said about the importance of
marriage in society and the significant benefits that marriage confers
on couples, their families, and the community. Proponents cannot
dispute these basic facts.

While marriage has been a revered and important institution throughout
the history of this country and this State, it has also evolved to
shed irrational, unwarranted, and discriminatory restrictions and
limitations that reflected the biases, prejudices or stereotypes of
the past. Marriage laws that disadvantaged women or people of
disfavored race or ethnicity have been eliminated. These changes have
come from legislatures and the courts. Far from harming the
institution of marriage, the elimination of discriminatory
restrictions on marriage has strengthened the institution, its
vitality, and its importance in American society today.



Proposition 8 had a simple, straightforward, and devastating purpose:
to withdraw from gay and lesbian people like the Plaintiffs their
previously recognized constitutional right to marry. The official
title of the ballot measure said it all: “Eliminates Right of Same-Sex
Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would
foreclose from the institution of marriage have suffered no harm
because they have been given the opportunity to form something called
a “domestic partnership.” That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because
they are prevented from marrying. And they will describe how
demeaning and insulting it can be to be told that they remain free to
marry—as long, that is, that they marry someone of the opposite sex
instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians
to “domestic partnerships” is to inflict upon them badges of
inferiority that forever stigmatize their loving relationships as
different, separate, unequal, and less worthy—something akin to a
commercial venture, not a loving union. Indeed, the proponents of
Proposition 8 acknowledge that domestic partnerships are not the same
as traditional marriage. Proponents proudly proclaim that, under
Proposition 8, the “unique and highly favorable imprimatur” of
marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave
psychological and physical harms to gay men and lesbians and their
families. It increases the likelihood that they will experience
discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s
long and painful history of discrimination and prejudice against gay
and lesbian individuals. They have been classified as degenerates,
targeted by police, harassed in the workplace, censored, demonized,
fired from government jobs, excluded from our armed forces, arrested
for their private sexual conduct, and repeatedly stripped of their
fundamental rights by popular vote. Although progress has occurred,
the roots of discrimination run deep and its impacts spread wide.



Proposition 8 singles out gay and lesbian individuals alone for
exclusion from the institution of marriage. In California, even
convicted murderers and child abusers enjoy the freedom to marry. As
the evidence clearly establishes, this discrimination has been placed
in California’s Constitution even though its victims are, and always
have been, fully contributing members of our society. And it
excludes gay men and lesbians from the institution of marriage even
though the characteristic for which they are targeted—their sexual
orientation—like race, sex, and ethnicity, is a fundamental aspect of
their identity that they did not choose for themselves and, as the
California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision
to eliminate the fundamental right to marry for a segment of its
citizens. And its chief legal officer, the Attorney General, admits
that none exists. And the evidence will show that each of the
rationalizations for Proposition 8 invented by its Proponents is
wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8
permits marriage by persons who are unable or have no intention of
producing children. Indeed, the institution of civil marriage in
this country has never been tied to the procreative capacity of those
seeking to marry.

Proposition 8 has no rational relation to the parenting of children
because same-sex couples and opposite sex couples are equally
permitted to have and raise children in California. The evidence in
this case will demonstrate that gay and lesbian individuals are every
bit as capable of being loving, caring and effective parents as
heterosexuals. The quality of a parent is not measured by gender but
the content of the heart.

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.

There is no rational justification for this unique pattern of
discrimination. Proposition 8, and the irrational pattern of
California’s regulation of marriage which it promulgates, advances no
legitimate state interest. All it does is label gay and lesbian
persons as different, inferior, unequal, and disfavored. And it
brands their relationships as not the same, and less-approved than
those enjoyed by opposite sex couples. It stigmatizes gays and
lesbians, classifies them as outcasts, and causes needless pain,
isolation and humiliation.

It is unconstitutional.

*Some footage from outside the court:

space gay-comment gay-G-A-Y-post gay-email gay-writer-jeremy-hooper

Your thoughts

Well, Jeremy, at least we all know now that you're wealthy.

Posted by: dave b | Jan 11, 2010 4:55:23 PM

Well of course, dave. We all get that ten million dollar sign-on bonus when we come out of the closet.

Did your check somehow get lost in the mail?

Posted by: G-A-Y | Jan 11, 2010 4:57:32 PM

Heck. Mine sure did. And it's such a shame, seeing as how my law school loans start coming due when I graduate in a few months. ;)

But really, it's disgusting that lawyers (you know, people who sat through Constitutional law and should KNOW what our founders said about things like Due Process and Equal Protection) are so unabashedly failing to admit the ramifications on LGBT community members and their families every time we lose at the ballot. I wish I could call it negligence of dissemination of important information...because that's what it seems to border on, even though they have no duty to actually tell the truth in these ridiculous publications they keep coming out with.

Posted by: Aya | Jan 11, 2010 5:15:59 PM

I love it... they cannot get away from their errs and it will be their downfall.

The ADF fact sheet is still full of the propaganda they would never dare say in court. I hope that Olsen brings this up, somehow, some way. I'd like to see this submitted as evidence and ask the ADF to prove half of what they state here.

Posted by: Bob Barnes | Jan 11, 2010 6:35:20 PM

The statement you reprinted above isn't lawyering, it's demogoguery. Unfortunately, for their audience it's perfect because it has no basis in fact which is completely akin to their audience's understanding of "faith". I totally understand this tactic. The religious in this country couldn't give a shit about the U.S. Constitution or American jurisprudence. They think they can rule by mob, not by law. These lawyers are counting on their audience's ignorance of the Constitution and the law and on their swallowing the crap they are fed by these supposed experts.

Posted by: Mykelb | Jan 11, 2010 6:50:43 PM

The nutjobs lawyers forgot to put in their "Protect the Children" bullshit.

Posted by: homer | Jan 11, 2010 9:35:29 PM

Thank you Aya for saying something that I have been thinking for a long time. What were some of these lawyers doing in law school? Were they cutting class when they talked about the things you cite? Did they fail that course? I suppose there are "law" schools that probably teach something other than US constitution law, relying on another book, one that is not the law of the land.

Posted by: Bob Miller | Jan 11, 2010 9:38:09 PM

Many of them studied at Christian schools, where it is all filtered through the pre-conceived scripts that we all know and loathe. "Gay rights are wrong, no matter what" being at (or at least towards) the top of that list.

Posted by: G-A-Y | Jan 11, 2010 9:46:21 PM

Thanks for the compliment, Bob.

What Jeremy said is correct, however. Go Google "Liberty Law School" and you'll see what he means. How that one got ABA-accredited (I believe it is, at any rate) is beyond me, but I suppose the ABA just requires that they meet certain standards. Even some of my law professors have personal opinions on certain issues. Most of them just play devil's advocate with them so students have the opportunity to argue the opposite. I highly doubt Liberty's professors allow such things (in fact, I believe Liberty's dean is the one representing Lisa Miller -- or had at one point -- in that child custody problem on the East Coast and is justifying her refusal to follow a court order, if you need further proof of Liberty's leanings).

P.S. One of these days, I'm actually going to open my political blog to the public. When I do, G-A-Y is being linked in as visible a place as possible. This site is amazing.

Posted by: Aya | Jan 11, 2010 10:02:21 PM

Liberty Counsel is more than just a radically-hellbent-on-making-life-for-LGBTs-miserable-legal-partnership, they are also part of Jerry Falwell's Liberty "University". The part where students of this safety school supposedly study "law".

Posted by: Dick Mills | Jan 11, 2010 10:03:06 PM

"Whether marriage will remain a unique institution that promotes the important interests of children and society or be transformed into nothing but a legal arrangement based only on the desires of the adults involved. "

I just cannot, CANNOT grasp how this is an argument the supporters of Prop 8 are using to defend their position.

I am a straight woman, and if/when (God help me) I get married, I am not getting married for ANYONE ELSE but myself and my future husband. I am not getting married for ANY OTHER REASON than I want to spend my life with the person I love. At the moment, at 23, I don't know if I want kids. I am not going to get married "for my potential kids". I am not going to get married "for society". I am not going to spend my entire life devoted/dedicated (hopefully, anyway) to one person for ANYONE ELSE BY MYSELF AND MY HUSBAND. And if we decide to have children, great! The more the merrier! But I will never, EVER let ANYONE tell me my marriage is an "institution" that exists "solely for the purpose of societal stability and procreation". My marriage will exist SOLEY for the mutual love and admiration between my future husband and I, and if and when we ever decide to change the makeup by adding some babies or dogs or parokeets, then that decision will come from us, NOT from "society".

My "desire" is to spend the rest of my life loving one person who feels the same way about me. Marriage is NOT a contract that forces two people to become automatic parents. I am not a God damn baby factory, nor will I EVER let ANYONE reduce my future marriage to such a title.

I fully support the LGBT community and their rigth to FULL MARRIAGE, whether they want to have 27 babies, or none at all. I fully support the LGBT community in terms of equal rights to adoption and foster care, as well as INV and any other methods of becoming a parent they choose, keyword, CHOOSE. But at the base of the argument, I fully support two adults fulfilling their "desires", even if their "desires" never result in children at all.

We should ALL be allowed to be happy with the one person we love. Being married is not equivilent to being a parent. Both are choices that are mutually exclusive to one another. One does not need to be married to be a parent, and one does not need to be a parent in order to be married.


Posted by: Stef | Jan 12, 2010 12:14:43 AM

Hey Jeremy, did you notice how in bullet point #4 that they didn't disclose anywhere that the usual concept OF a modern "marriage" is, precisely, a "legal arrangement based only on the desires of the adults involved."?! ;oP Still, I have seen Trolls on-line demand that the we HAVE no right to marry; that the onus is on us to prove how allowing us to marriage is beneficial to the State; and that NO rights are being denied to us...we still (he argues) have a right to marry whomever we want--just not a person of the same gender!

BTW, is anyone going to be addressing precisely why GLBT couples should be compelled by law to pay taxes that they are denied any benefit of for their personal and individual relationships?

It terrifies me that so few heterosexuals (or, as I call them, Heterosexists!) view us as Second Class citizens! Even my own mom balked at me when I said that this is precisely how I am treated in the US.

Posted by: Wade MacMorrighan | Jan 12, 2010 2:42:06 AM

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