Perry: the rebuttal to the appeal

By Timothy Kincaid -

   Perry v. Schwarzenegger is about whether California’s Proposition 8 was in violation of the US Constitution… but not really. That’s just the issue. Perry is about something much larger. And it is in the opening paragraphs of the plaintiffs’ rebuttal to appeal (pdf) that this is so eloquently made clear:

This case tests the proposition whether the gay and lesbian Americans among us should be counted as “persons” under the Fourteenth Amendment, or whether they constitute a permanent underclass ineligible for protection under that cornerstone of our Constitution.

   Perry is a question about marriage, but the real question, the one that drives the motivations behind Proposition 8 and all of the anti-gay activists, is whether the US Constitution also covers gay people or whether the words “any person” contains an invisible asterisk that references a special exclusion.
This battle, like that over DADT, adoption, and all of the other areas in which gays are segregated and excluded is a battle over whether gay people will be seen as full citizens, or whether the “normalization of homosexuality” is so great a threat that the equality principles enshrined in our founding documents have to be discarded or ignored.
   Ted Olson’s response to appeal is as much a stirring call to uphold our values as a people as it is a legal argument. Yes, his logic is sound and his legal reasoning is beyond reproach (and amazingly easy for a lay person to understand); but it is his reminder of why we believe what we believe that makes this document such a great read.
   The purpose of the Proponents is not, as they suppose, to protect some idealized institution of marriage. Rather, it is to further and support the culture of disapproval of homosexuality and to do so by carving out an exclusion from the protections afforded by the Constitution. But this is not just a “social discussion” or a “moral position” without direct and dire consequences. As Olson concludes:

Last month, in a widely publicized tragedy, a young Rutgers student jumped to his death from the George Washington Bridge after being outed on the Internet as gay. A few days later, across the Hudson River in the Bronx, two 17-year-old young men were beaten and tortured to the brink of death by a gang of nine because they were suspected of being gay. Incidents such as these are all too familiar to our society.
And it is too plain for argument that discrimination written into our constitutional charters inexorably leads to shame, humiliation, ostracism, fear, and hostility. The consequences are all too often very, very tragic.

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