Why the California Gay-Marriage Ban Was Overturned

The California referendum-based law banning gay and lesbian marriage, Proposition 8, was passed in November 2008—and it was overturned yesterday in a successful court challenge. I think it’s important for you to understand the legal argument behind this successful challenge because I think it’s extremely strong. Former Bush Administration Solicitor General Ted Olson and noted attorney and philanthropist David Boies were the lead attorneys who challenged Prop. 8. The logic used can win gay and lesbian rights in all 50 states.


I heard both men interviewed by Anderson Cooper last night on his “AC360” show (click here to see the interview). Their strategy had the following points:

1. Marriage is a fundamental right.

2. Prop. 8 denies that right.

3. Depriving lesbian and gay people of the right to marry seriously harms them and their children and has no legitimate benefit to society. It doesn’t preserve or help heterosexual marriages.

For people who have not had extensive experience with attorneys—and having been an entrepreneur for 16 years qualifies me as being an expert in having experience with attorneys—I think it’s important to understand that emotional arguments or statements based on religious belief have no real relevance in court. It comes down to determination of facts. The key point presented by the defending attorneys (in support of Prop. 8) was that changing “traditional” marriage would impact or harm heterosexual marriage. The facts did not support this point and the defendants’ witnesses, on cross-examination, supported the above three points. There is no evidence of any harm to anyone by having gay marriage.

It’s important to note that the defense did not use election-cycle fear-campaign tactics—such as claiming that gay marriage would cause children to be “indoctrinated” in schools and taught that being gay is “OK”—because, as Olson and Boies pointed out, these statements sounded and are discriminatory. Instead, the defense of Prop. 8 was founded on the theory that allowing gay and lesbian people to marry would somehow discourage heterosexual people. This simply didn’t hold up in court because the challenging attorneys were able to show the facts simply didn’t support these assertions.

Rather, the court found that gays and lesbians can raise children and have family units—and this success had no impact on the success or failure of heterosexual couples to do the same. In the interview, Olson noted that “their best case didn’t have any rational base for this discrimination.”

In his 136-page decision, Judge Vaughn Walker found that “domestic partnership” was in fact second-class status and that this harmed gay and lesbian couples and harmed their children.

My opinion is that this decision is in the best tradition of our country; it shows that our Revolution, founded in the concept that human rights are given by the creator and that all people are created equally, is still alive. If you find this message uplifting, you will want to see Boies’ speech, “Today we eliminate discrimination.” Click here to go to the CNN page to see it.

I am not opening this page for reader comments because I think this article will attract vicious, angry, hate-filled commentary that we then have to screen. For those of you frustrated by this new policy, here’s a message: We will not be an agent to legitimize hate. There’s a big World Wide Web for you to create your own websites; you will not be a parasite of mine. Let’s see who’s more popular over the long run.

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