Here is Ted Olson's opening statement in the federal challenge to Prop 8, as prepared:
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 society.”
Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.
Continued, AFTER THE JUMP...
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
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.
MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE
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
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 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND THEIR COMMUNITIES
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 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON
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
“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
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
It is unconstitutional.