Olsen and Perry v. Schwarzenegger

Ted Olsen is one of the individuals arguing the plaintiff's case in Perry v. Schwarzenegger. He's put his prepared opening statement remarks online. Based on them, it's possible to make certain guesses about where he plans to go. There are also a couple of other items in his statement that are worth pointing out.

- From my understanding of the plaintiffs' claims, the key point that the plaintiffs intend to make is that the backers of Proposition 8 were motivated by bias and that bias taints the entire Proposition irrespective of the fact that it was the voters themselves who voted for it. This will then presumably (according to the plaintiffs' arguments) be enough to overturn the proposition on constitutional grounds. But Olsen's opening statement doesn't appear to reference that claim at all. Instead, his statement focuses repeatedly on the claim that same sex couples are being denied a fundamental right. Of course, the opening statement really isn't evidence in a trial. But opening statements generally give one an idea of the direction in which the lawyer intends to take his case.

- Olsen emphasizes that fixes to past wrongs toward "disadvantaged" groups have come due to the influence of courts and legislatures. Unspoken is the obvious follow-up point that the opinion of the people should be ignored in this matter. It was the people that enacted Proposition 8 (and Proposition 22 back in 1990). But Olsen clearly lays out that he expects the judges and legislators to "fix" this mistake by the people. Note that the California legislature actually did attempt to pass a pro-same sex marriage bill (which to my understanding would have been purely symbolic as acts of the legislature cannot overturn ballot initiatives in California) a few years ago, but Schwarzenegger (who has voiced support for legalizing same sex marriage) vetoed it and stated that the will of the people should be respected on this issue.

- Olsen mentions that the California Attorney General "admits" that there's no reason that same sex marriages shouldn't be allowed. But while his phrasing seems to imply that such an "admission" was wrung out of Attorney General Jerry Brown, Olsen fails to mention Brown's own personal biases that were on display immediately after Proposition 8 was passed. AG Brown not only refused to carry out his duty as a public official by defending the state constitution, but he even went so far as to provide legal arguments against it. It should be noted, though, that AG Brown's legal arguments were derided even by those who generally opposed Proposition 8. Thus, AG Brown's inability to defend the changes to the state constitution caused by Proposition 8 isn't exactly something that I would use as part of a persuasive argument.

- Olsen mocks the idea that same sex marriage might be pushed upon the rest of society. Never mind the problem that the Washington D.C. City Council (ignoring the wishes of the population that it purports to serve) caused Catholic Charities when it forced the charitable organization to choose between leaving the D.C. area, contravening its religious principles, or no longer providing any benefits to married couples. Never mind the fact that a teacher in San Francisco took her elementary school children on a field trip to a wedding between two women shortly before the passage of Proposition 8. And if you refer a lesbian mother-to-be to another individual for reproductive-related services or care because you believe that a child develops best when it has a father instead of a second mother*, never mind that you can be successfully sued in a court of law. No, Olsen clearly knows best when he tells us that allowing same sex marriage won't cause any great problems in society and that there is no reason to fear that it will be pushed by those with an agenda.

- Olsen's last paragraph claims that same sex relationships are "less approved" because they can't get a marriage license. What Olsen neglects to mention is the simple fact that in this day and age most people really don't care about marital status. There are so many people "living together" - both opposite and same sex couples - that for the majority of people it's of no more interest than whether you are right or left-handed. It's merely a footnote to the relationship. And those that do care probably have stronger disapproval toward same sex relationships in general than they do over whether or not the couple is "living in sin".


*Of course, if a doctor refused to help a single woman get pregnant using that same rational, I suspect that the doctor would be well within his or her rights.