prop 8 federal trial

The federal trial regarding the constitutional status of Prop 8 began today. An article by Ted Olson that came out yesterday in Newsweek is here. I found this to be rather poignant:

The United States Supreme Court has repeatedly held that marriage is one of the most fundamental rights that we have as Americans under our Constitution. It is an expression of our desire to create a social partnership, to live and share life's joys and burdens with the person we love, and to form a lasting bond and a social identity. The Supreme Court has said that marriage is a part of the Constitution's protections of liberty, privacy, freedom of association, and spiritual identification. In short, the right to marry helps us to define ourselves and our place in a community. Without it, there can be no true equality under the law.

The text of Olson’s opening remarks today is here. This hits the mark:

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.

Rick Jacobs (Chair of Courage Campaign) liveblogging the trial is here. This bit:

Judge Walker: why shouldn’t courts stay out of this as Mr. Cooper says?

Olson: That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today.”

…is classic. This observation (paraphrased by Jacobs) by Professor Nancy Cott, author of Public Vows:

Marriage is unique because it successfully combines private and public. It is successful as an institution as a couple’s valuation of living together, commitment to each other and engage in an economic partnership to their household. Upon that core, very many cultural add ons have been admitted as well.

The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.

...is a stellar analogy.

more tomorrow…