Read the transcript of Ted Olson’s opening statement here. A taste:

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.

The NYT write-up is here.

Judge Walker set a questioning tone early, repeatedly interrupting an opening statement by Theodore B. Olson, a lead counsel for the plaintiffs — two gay couples who filed their suit in the spring after the California Supreme Court upheld Proposition 8. The judge asked Mr. Olson why domestic partnerships, which are allowed in California, were not sufficient for gay couples and wondered what kind of evidence would be introduced to show harm to same-sex couples who are not allowed to marry.

Mr. Olson, a prominent conservative litigator whose co-counsel is David Boies, his foe from the 2000 battle over the presidential election, countered that marriage “was a building block of family, neighborhoods and community” in America, and that to deny gays that right was to effectively make them second-class citizens. Proposition 8, he said, “isolated gay men and lesbian individuals and said, ‘You’re different.’”

The LA Times report is here.

Theodore Olson, an attorney for two same-sex couples challenging Proposition 8, told the court that marriage was central to life in America. “It’s the building block of family, neighborhood and community in our society,” Olson said in the packed San Francisco courtroom of U.S. District Judge Vaughn R. Walker.

But Charles Cooper, representing proponents of the ban, said same-sex marriage was too new and too rare to know what consequences it may have. “People of California are entitled to await the results of that experiment … before they make a fundamental change and alteration in the traditional definition of marriage.”

More at PamsHouseBlend, JoeMyGod, Towleroad, and LGBT POV.

28 replies on “Prop 8 Trial: Day One”

  3. Hmmm…. “kicked ass”, the people’s of California ass? Still, it would be so nice of those ass-kickers if they could tell the people (whose ass they’re kicking soo much) where’s the Constitutional right for a gay individual to throw away their votes and redefine marriage?

  6. @3 – it wouldn’t be the “gay individual” who throws the votes away. It will be the judge, if he finds it at odds with the state’s constitution.

    Don’t worry – if you feel like you should be above the law, you can always satisfy yourself with hate crimes.

  11. It’s too new? There’s documented evidence that our current idea of marriage is about 100 to 150 years old in the U.S.; that it differs all over the place; that same-sex marriage for property reasons was common in the 1000s; that monks married each other; and so on.

    The fundamentalists history timeline goes like this:

    4000-odd B.C.: Earth created.
    0: Christ killed
    0-1950 nothing happened
    1950: everything that was true in 1950 was true before that.

  12. There are a lot of other countries that have had gay marriage for years? What’s so special about the US that they would need further ‘testing’?

  19. @16, careful, there. That’s not the argument that you want to make. Our fundamental right to privacy comes from the word “liberty” in the Fourteenth Amendment. That right includes the right to contraception, sexual privacy, procreation, keeping the family together, raising your own children, and refusal of life-saving medical care–none of which are “even mention[ed]” in the Constitution.

  21. 3, Loveschild, you mean the way the courts kicked the ass of the Virginia voters in Loving v. Virigina, when the court took and activist stance, and overturned interracial marriage bans?

  24. From the New Yorker’s article on the pretrial hearing:

    At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”

    “All right,” Cooper said.

    “All right,” Walker said. “Let’s play on the same playing field for once.”

    There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”

    Charles Cooper, for the record, headed the Office of Legal Counsel for three years under Reagan. He’s not some ambulance chaser out of the Yellow Pages, he was in charge the president’s law firm (as did Ted Olson, his immediate predecessor in the position). And still, this guy was reduced to admitting to have no identifiable rational basis for his assertions. That’s how bankrupt these arguments are.

  25. @3, Only Merriam Webster has the right to change the definition of marriage. You are too late. The good news is that MW did not require the dissolution of your own marriage or make your husband catch the gay. That part is entirely on you.

    1 a (1) : the state of being united to a person of the opposite sex as husband or wife in a consensual and contractual relationship recognized by law (2) : the state of being united to a person of the same sex in a relationship like that of a traditional marriage.

  26. That argument about “too new” is so weak it is comical. I mean, is that the best they’ve got? ” We have to await the outcome of this experiment before we can have this experiment.” The most charitable thing you can say about this is that they don’t mind if 49 states and the rest of the world have gay marriage.

  27. Excuse me, but the bible makes it quite clear that murderers and child molesters can marry. To multiple wives if they want to. Abraham’s God did not say it is OK for gays to marry. That’s our tradition and we should stick to it.

  28. anyone know when or if there will be cameras in the courtroom?

    I find it suspicious that the opponents didn’t want them there, like maybe there would be grandstanding from Olson et al. Not like the other side would do that oh no. Let’s see the legal system in action folks. This is far more important ( and real) than say, the OJ Simpson trial.

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