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posted Friday, March 19, 2010 - Volume 38 Issue 12

Boies and Olson
by Jennifer Vanasco - SGN Contributing Writer

Last week, I sat in a room in the presence of history.

At least that's what it felt like.

Ted Olson and David Boies, the two lawyers who are arguing for equal marriage in the California Proposition 8 case, were in New York to talk about their experience.

There's no decision in the Prop 8 case yet - there haven't even been closing arguments. But Olson and Boies expect a decision by June.

And they expect it to be pro-Gay marriage.

To anyone who followed the testimony while it was happening, this is no surprise. Olson, Boies, and their witnesses made eloquent arguments for why Gays and Lesbians have the right to marry.

They recapped those arguments in a Q&A with warmth and power.

First off, they said, the Supreme Court has already said that marriage is a fundamental right. Not just in Loving v Virginia, the famous case that struck down bans on interracial marriage, but also in cases like one in Wisconsin, which had a law against people like domestic abusers marrying. Wisconsin had decided that if you get marriage wrong once, you can't have it again.

The Supreme Court said no.

Missouri had a law that if you're in prison for life, you can't marry.

The Supreme Court said no.

Marriage is so central that even if you're in prison for life, even if you've married seven times, even if you've abused a previous spouse, you have the right to marry.

That is how important it is.

And therefore, discrimination against the right of Gays and Lesbians to marry, Olson said, is "wrong, destructive and serves no state purpose."

Second, there is just no evidence to show that Gay marriage hurts straight marriage. But there is plenty to prove that not being able to marry hurts not only Gay and Lesbian people, but also our children.

Even the pro-Prop 8 side admitted this. When Judge Vaughn Walker asked one of their lawyers if Gay marriage would hurt straight marriage, he said, "I don't know."

Sure, the other side keeps saying - over and over again - that it is in the state's interest to "protect" marriage between a man and a woman because they are most likely to procreate and procreation is in the state's interest.

But what Olson and Boies say to that is simply this: No state has ever had a fertility test before granting a marriage license. No state has ever asked a couple about their intention to procreate. So how invested in procreation can the state be?

And finally, the argument from tradition is specious. It's true, Olson and Boies say, that allowing Gays and Lesbians to marry will change the definition of marriage. But allowing interracial marriage changed the definition of marriage, too.

As Boies said, quoting Justice Kennedy, "The fact that discrimination has gone on a long time doesn't make it fine - it makes it worse."

Watching Olson and Boies speak gave me shivers because they laid out a clear pathway to winning. They said that just the fact that they made such a clear case, bringing all the evidence together for the first time, will move the country forward, because it tears down the other side's position.

But even better, their arguments are arguments we can all use when explaining equal marriage to family and colleagues. They are not defensive. They are not overreaching. They are right.

We will win the current Prop 8 trial. And we may win the appellate trial. But Olson and Boies' confidence and solid reasoning made me think for the first time that we will also win the Supreme Court. And if we win California, we will have gone a long way toward winning equal marriage everywhere.

Marriage is coming. And those of us who were in that room last week were lucky enough to meet the men who may help make it happen.

The full Olson/Boies Q&A is available at 365gay.com.

Jennifer Vanasco is an award-winning, syndicated columnist. E-mail her at Jennifer.Vanasco@gmail.com; Follow her at Twitter.com/JenniferVanasco.

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