Two leading US constitutional lawyers, the liberal David Boies and the conservative Ted Olson, have been advocating for the overturn of Proposition 8, California’s gay marriage ban, in federal court in San Francisco. Testimony has concluded, closing arguments are still to come, and a decision is expected this spring.
Venerable PBS talk show host Bill Moyers interviewed Boies and Olson on his Feb. 26 show. Watch the video (49 minutes) here. The transcript and related links are also available on the site. One of the most interesting links is MarriageTrial.com. According to Moyers, the district court would not let the proceedings be filmed, so two Los Angeles filmmakers decided to reenact the trial on their website, with professional actors, using the trial transcripts as their script. So far they’ve covered four of the 12 days of testimony.
The Moyers interview contains many quote-worthy passages. I chose this one because it’s a clever argument that I haven’t heard before. Boldface emphasis mine.
TED OLSON: …You asked me the most effective thing that happened on the other side? I will, I didn’t find any of their arguments effective. I have said from the beginning of this case, I’ve yet to hear an argument that persuades me or even comes close to persuading me that we should treat our gay and lesbian colleagues differently and deny them equality.
But what really happened, which was a very eye-opening event, during the course of the trial, during one of the earlier proceedings. The judge in our case asked my opponent, “What harm to the institution of heterosexual marriage would occur if gays and lesbians were allowed to marry?”
This went back and forth and back and forth. The judge kept wanting an answer. “What damage would be done to the institution of marriage if we allowed this to happen?” And my opponent said, finally, he had to answer it truthfully. He paused and he said, “I don’t know. I don’t know.” That to me sums up the other side. They say the traditional definition of marriage, but nothing by allowing the two couples that were before the court or others like them to engage in a relationship with their partner where they can be treated as an equal member of society hurts your marriage or my marriage or David’s marriage or any other heterosexual marriage. People are not going to say, “I don’t want to get married anymore if those same sex people can get married. That’s not going to happen.” There is no evidence to support a basis for this prohibition.
BILL MOYERS: And yet your opponents kept coming back to the argument that the central reason for Proposition 8, and I’m quoting here, is it’s role, quote “in regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation.”
TED OLSON: We have never in this country required an ability or a desire to procreate as a condition to getting married. People who are at 70, 80, 90 years old may get married. People who have no interest in having children can get married.
And what that argument does is tip it on its head. The Supreme Court has said that the right to get married is a fundamental individual right. And our opponents say, “Well, the state has an interest in procreation and that’s why we allow people to get married.” That marriage is for the benefit of the state. Freedom of relationship is for the benefit of the state.” We don’t believe that in this country. We believe that we created a government which we gave certain authority to the government. The government doesn’t give us liberty, we give the government power to a certain degree to restrict our liberty, but subject to the Bill of Rights.
So, our fundamental differences there, no one’s stopping the procreational function of people that wish — heterosexual people to get married and have all the children that they want. No one’s stopping that. It is simply allowing people that have abiding affection for one another to live a civil life as your next-door neighbor. The same way you are.
DAVID BOIES: The most important thing is that there’s no connection between gay and lesbian marriage and procreation. It doesn’t limit procreation. It doesn’t discourage heterosexual marriage. In fact, it allows gays and lesbians to raise their children. They’re talking about the children of heterosexuals, okay? Those people aren’t being harmed. They’re ignoring the children of the gay and lesbian couples, who even the defendants in this case admitted were being harmed by Proposition 8.