Prop 8 Trial and Coverage: Mid-Day Update

Lisa Leff's mid-day update for the Associated Press is here.

Olson said the U.S. Supreme Court has repeatedly recognized marriage as a fundamental right - one afforded to prisoners serving life sentences and child support scofflaws - while refusing to make procreation a precondition of marriage, as evidenced by laws allowing divorces and contraception.

SCOTUS has never recognized that a brideless or groomless pairing is marriage and that such a couple has a right to a state-issued license. If a state-issued marriage license is truly a fundamental right in such a way that restrictions are not allowed to deny that license to someone based on their choice of partners, then it can't be denied to first cousins (as it is in some states) or closer relatives, or more than two people.

"It is the right of individuals, not an indulgence to be dispensed by the state," Olson said.

Actually, that’s clearly false. State licenses, by definition, are issued by the state on behalf of the people of a state. Fundamental rights are things you are born with. Bans on "interracial" marriage literally denied people the ability to live together. That's not the case anymore - you don't have to be married to live together. Individuals do have the right to freedom of association (although that has always been restricted in some way throughout our history). But today, consenting adults do have the right to associate as they wish – living together, celebrating their relationship, etc. What they do not have is a right to force the rest of us to give them anything.

"The right to marry, to choose to marry, has never been tied to procreation."

The ability to naturally procreate is a major, if not the only, reason for the state to be involved in a voluntary personal relationship between adults. Absent that ability, the state interest isn't the same.

Sponsors of the proposition had failed to prove that the ability of heterosexual couples to procreate without reproductive technology provided justification for denying marriage to same-sex couples, Olson said.

This is backwards. This implies that the government should do something (in this case, issue marriage licenses to brideless or groomless couples) unless it can be demonstrated to be harmful. Our entire Constitution was written on the premise that the government should not be involved in anything - certainly not voluntary personal relationships - unless someone’s rights are being threatened, such as through assault or theft... or unless it was specifically instructed by the Constitution to be involved in something. Nobody's right is threatened when they have the same access to a license as anybody else - even if they don't want to get that license under current conditions.

Olson also stressed that Proposition 8 sponsors had failed to prove allowing gay marriages would harm the institution of marriage or society as a whole.

It is up to those suing for a change to demonstrate that they are somehow impaired or harmed by the state constitutional amendment in a way that compels the federal government to get involved. They have the burden of proof. Homosexuality advocates are apparently are so used to getting something simply because they ask for it that they are under the delusion that the rest of us can only say "no" to their demands of us if we demonstrate to their satisfaction grave harm would result. That's not the way the law works, unless they get a judge to go along with them.

The lawyer argued that Proposition 8 was based on prejudice because the main campaign message its sponsors used in 2008 warned voters the measure was needed to prevent children from learning about same-sex marriage.

I've seen demonstrably false campaign ads about propositions, and ads that focused on minor points with specific talking points - because those talking points worked with focus groups. Lies such as that kids and the elderly would die if the proposition passed, or wasn't passed, or whatever. So what? What matters is the text of the law.

"Protect our children from learning or being taught that gay marriage is OK, and that means that gay people's marriage is not OK, and that means gay people are not OK," Olson said.

Really? Haven't you ever thought a friend's marriage (or even one of your own) was a bad one – and if so, did that mean you thought that person was bad, or that you hated the person? Hasn't anyone ever told you something they thought about themselves that you didn't believe to be true? You thought the person was mistaken, but did you think they were "not OK"?

UPDATE: From LATimes.com's report by Maria L. La Ganga...

And would the case before him now be different if [neutered] marriage hadn't been legal in California for five months, if an estimated 18,000 couples hadn't legally married and remain legally married today?

The constitutional amendment was drafted to protect existing law. Thanks for the California Supreme Court's refusal to wait until the vote they knew was coming, it ended up restoring law. As such, the resulting disparities are their doing.

Theodore Olson, who represents the gay and lesbian couples suing for the right to wed, gave a passionate closing argument in favor of overturning the measure and spoke about the importance of marriage in society.

But why is it important, Ted? It's like saying a diploma is so important, so everyone should get one even if they haven't chosen to meet the requirement.

He showed an emotional video from the 2-1/2 weeks of testimony earlier this year of the four plaintiffs talking about how painful it is to be denied what they call a fundamental right and what it would mean to them to be able to marry their long-term partners.

Said Kris Perry, who lives in Berkeley with Sandy Stier, her partner of more than a decade: “There is something so humiliating about everybody knowing you want to make that decision [to marry] and you don’t get to. It’s hard to face the people at work.… I have to still find a way to feel OK and not take every bit of discriminatory behavior against me personally.”

That I don't like a condition for state licensing does not obligate a change in that licensing. Even if I cry about it.

While I am against humiliating someone in front of others, the rest of us are not obligated to try to structure our laws so that you don't feel humuliated - in fact, it would be forcing my morality on others to try to outlaw humiliating someone else. Feelings are not always rational or based on reality. People will still look at your relationship differently, even with a marriage license. Do you want thought police?