SAN FRANCISCO (CN) – Attorney Theodore Olson criticized the rationale behind Proposition 8 on Wednesday in his closing arguments in the federal trial challenging California’s same-sex marriage ban. “The proponents have argued grave consequences for permitting same-sex marriage because it will lead to social harms, high rates of divorce and unmarried co-habitation,” said Olson, who is representing gay couples. “But they have no idea and no evidence that these prognostications will come to pass.”
Attorneys for opponents of Prop. 8, which defines marriage as the union of one man and one woman under the state’s Constitution, claimed that U.S. Chief District Judge Vaughn Walker should use the highest level of scrutiny in determining whether Prop. 8 discriminates against gay couples.
Walker asked whether the judiciary should step into the social and moral arena. “When does it become right for the court to weigh in on these issues?” he asked. He turned to Olson with another query: “I have to find that it was a discriminatory motive on the part of the voters.”
“I submit that plenty of good Californians voted for Prop. 8 because they are uncomfortable with gay people,” Olson said. He emphasized throughout his argument that Prop 8. stripped gay and lesbian couples of “the fundamental constitutional right to marry.”
Prior to Prop. 8’s passage in November 2008, California had briefly allowed same-sex marriages.
Olson likened the case, brought by plaintiffs Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarillo, to the 1967 Supreme Court ruling in Loving v. Virginia, which ended all race-based marriage restrictions.
“These plaintiffs have no interest in changing marriage,” Olson said. “They cherish the institution and have the same interest as Mildred Jeter and Richard Loving.”
He added: “I believe this case could be decided on legislative facts, whatever they may be, but these people are being singled out.”
“Would this case be different if California had not permitted same-sex marriage?” Walker asked.
“It would be different, but still unconstitutional,” Olson answered.
Olson quoted statements made by the proponents’ lead witness, Dr. David Blankenhorn, to pinpoint weaknesses in his opponents’ witness testimony.
“We would be more American on the day we permit same-sex marriage than on the day before,” Blankenhorn had said during the January trial.
“And that was the proponents’ principle witness,” Olson said. “I was quite stricken by Dr., er, Mr. Blankenhorn’s testimony.”
Ultimately, Olson said, Prop 8 supporters simply do not have enough evidence to support their claim that same-sex marriages would change heterosexual attitudes toward the institution.
“No one aspires as a child to grow up and enter a domestic partnership,” Olson said. “The proponents’ argument that this is traditional and we’ve always done it this way is a corollary to ‘because I said so.’ It’s not a reason.”