Ted Olson and David Boies Wall Street Journal: Gays Deserve Equal Rights
Four years ago, the two us of joined forces and launched a federal constitutional challenge to Proposition 8, a ballot initiative which eliminated the right of same-sex couples in California to marry. Tuesday, the Supreme Court will hear argument in that case. The central question is whether a state may exclude gay and lesbian Americans from what the Supreme Court has called “the most important relation in life”—the institution of marriage. The answer is no.
We represent two loving and committed couples. In many ways, our clients’ relationships are indistinguishable from our own: They have lives and homes together, they are raising children, they have jobs, they pay bills, they run errands. They experience together many of the joys and sorrows and laughter of life as a family in America.
But California has locked them out of the institution of marriage because they are gay. As the official voter guide expressly stated in 2008, Proposition 8 was enacted to communicate, with the force of law, that gay and lesbian relationships are not “okay.” This sent the unmistakable message that such relationships are unworthy of the respect, dignity and status that society accords to marriages—a status even our opponents describe as “indispensable to the integrity of the individual.”
When we filed this case in 2009, some suggested that the American people were not ready to embrace gay men and lesbians as equals with respect to the right of marriage. People spoke of the potential of a Roe v. Wade backlash, or even a culture war, if the courts ruled in favor of ending this harsh, unnecessary and demeaning form of discrimination.
This never made sense because, while Roe was perceived as creating a new constitutional right out of whole cloth, the Supreme Court has recognized at least 14 times that marriage is a fundamental right of all individuals.
In any event, public opinion has since shifted dramatically in favor of marriage equality. This month, a Washington Post-ABC News poll found that 58% of Americans favor marriage equality, compared with just 36% against. The same poll found an astonishing 81% of adults under 30 in favor of marriage equality. That poll came on the heels of a friend-of-the-court brief in favor of marriage equality filed by more than 100 prominent Republicans.
As a result, our opponents have shifted gears. They argue that the growing support for marriage equality means that the courts should leave to the states whether to permit marriage equality sometime in the indefinite future.
But as we proved during a 12-day trial that we won in a California federal district court in 2010, laws like Proposition 8 cause devastating harm to gay and lesbian couples and their children. Exclusion from the institution of marriage marks those couples and their children with a badge of inferiority. The damage this does to their hearts and minds is immeasurable—and the damage it does to all of us and our belief in the nation’s ideal of equality is incalculable.
For one to say that the Supreme Court should leave the question of marriage equality to the political processes of the states is to say that states should remain free to discriminate—to impose this pain and humiliation on gay men and lesbians and their children—for as long as they wish, without justification. The Constitution forbids such an indecent result. It did not tolerate it in separate schools and drinking fountains, it did not tolerate it with respect to bans on interracial marriage, and it does not tolerate it here.
Because of their sexual orientation—a characteristic with which they were born and which they cannot change—our clients and hundreds of thousands of gay men and lesbians in California and across the country are being excluded from one of life’s most precious relationships.
Opening to them participation in the unique and immensely valuable institution of marriage will not diminish the value or status of marriage for heterosexuals, but withholding marriage causes infinite and permanent stigma, pain and isolation. It denies gay men and lesbians their identity and their dignity; it labels their families as second-rate.
That outcome cannot be squared with the principle of equality and the unalienable right to liberty and the pursuit of happiness that is the bedrock promise of America from the Declaration of Independence to the 14th Amendment, and the dream of all Americans. This badge of inequality must be extinguished.