Conservative Lawyer’s Closing Argument On Behalf Of Gay Marriage Is Simply Beautiful

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Gay Marriage 1I went through the first 56 pages of the 164-page PDF of closing arguments in the gay marriage court fight in California and narrowed it down to but a few paragraphs.

The entire document contains frequent interruptions by the Judge for clarifications, but I wanted to include (based on space limitations) mainly the actual prepared remarks by attorney Theodore "Ted" Olson, representing our heroic plaintiffs, most famous for "switching sides" from defending the Bush campaign in Florida in 2000.

Now, he’s a liberal and gay rights legend, thanks to this monologue. It’s still quite epic, despite my abridgment, but worth every line:

"We conclude this trial, Your Honor, where we began. This case is about marriage and equality.

The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly-situated Californians. Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized, and second rate. Their state has stigmatized them as unworthy of marriage, different and less respected.

In the words of their lead counsel, "The central and defining purpose of the institution
of marriage, what it has always been, is to promote procreation and to channel narrowly procreative sexual activities between men and women into stable, enduring unions."

It is quite clear from these statements and other statements made by the proponents during the trial, Your Honor, that the… proponents of Proposition 8 see marriage as an institution of, by and for the state, and to promote procreation…

And proponents’ counsel added… that racial restrictions were never a definitional feature of the institution of marriage. At times during the trial, the proponents predicted grave consequences if same-sex marriage were to be legalized in California.

For example, you asked, "How does permitting same-sex couples to marry in any way diminish the procreative aspect or function of marriage, or denigrate the institution of marriage for heterosexuals?" Lead counsel responded: "Your Honor, because it will change the institution. If the institution is deinstitutionalized," he said, "Mr. Blankenhorn will testify that will likely lead to very real social harms, such as lower marriage rates and high rates of divorce and nonmarital cohabitation, with more children raised outside the marriage…"

It is revealing, it seems to me, that the deinstitutionalization message is quite different from the thrust of the proponents’ Yes on 8 election campaign. That, in the words they put into the hands of all California voters, focused heavily on: Protect our children from somehow learning that gay marriage is okay.

For obvious reasons, the "gays are not okay" message was largely abandoned during the trial in favor of the procreation and deinstitutionalization themes."


"That is the essence of the case as it comes to the end of the trial and to the closing arguments. They just don’t know whether same-sex marriage will harm the institution of heterosexual marriage. And I submit that the overwhelming evidence in this case proves that we do know. And the fact is that allowing persons to marry someone of the same-sex will not, in the slightest, deter heterosexuals from marrying, from staying married, or from having babies.

[Marriage] is the foundation of society. It is essential to the orderly pursuit of happiness. It’s a right of privacy older than the Bill of Rights and older than our political parties. One of the liberties protected by the Due Process Clause. A right of intimacy to the degree of being sacred. And a liberty right equally available to a person in a homosexual relationship as to heterosexual persons.

The plaintiffs have said that marriage means to them freedom, pride. These are their words. Dignity. Belonging. Respect. Equality. Permanence. Acceptance. Security. Honor. Dedication. And a public commitment to the world.

…Preserving the institution of marriage. We’ve improved the institution of marriage when we allowed interracial couples to get married. We have improved the institution of marriage when we allowed women to be equal partners in the marital relationship. We have improved the institution of marriage when we didn’t put artificial barriers based upon race. And we will improve the institution of marriage and we will be more American… when we eliminate this terrible stigma.

It will not hurt Californians. It will benefit Californians. But as long as it doesn’t hurt Californians to get rid of harmful stigma in their Constitution that’s labeling people into classes, then it’s unconstitutional.

Thank you, your Honor."

Thank you, Mr. Olson.