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Opinion

The Prop. 8 case trial memos

Excerpts from the opponents and proponents in the case.

January 26, 2010

The following excerpts come from the trial memos filed by the opponents and proponents of the constitutionality of Proposition 8, in Perry vs. Schwarzenegger, now being heard in U.S. District Court in San Francisco.

From the proponents of Proposition 8

The traditional definition of marriage does not reflect animus against gays and lesbians. . . . Nor is it in any way arbitrary or irrational. Rather, it simply reflects the fact that the institution of marriage is, and always has been, uniquely concerned with promoting and regulating naturally procreative relationships between men and women to provide for the nurture and upbringing of the next generation.

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Far from being politically powerless, gays and lesbians have substantial political power . . . including the ability to force lawmakers to take positions and actions against their preferences. . . . Indeed, with the exception of extending the denomination of marriage to same-sex relationships, virtually every policy supported by the gay and lesbian lobby in California has been enacted in California law.

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Gays and lesbians enjoy more social acceptance than ever before in this country. To be sure, there are segments of the citizenry that adhere to traditional moral and/or religious views that disapprove of homosexual conduct. But sincerely held moral or religious views that require acceptance and love of gay people, while disapproving certain aspects of their conduct, are not tantamount to discrimination.

From the opponents to Proposition 8

The right to marriage has always been based on the constitutional liberty to select the partner of one's choice -- not on the partner chosen.

The ability to enter into domestic partnerships is not a constitutionally permissible substitute for the esteemed institution of marriage.

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Promoting procreation cannot serve as a legitimate basis for denying individuals their constitutionally protected right to marry. . . . Even proponents have never suggested that a state could constitutionally deny heterosexual individuals the right to marry one another simply because . . . they are incapable of procreating together. . . .

Moreover, proponents have no evidence whatsoever to support the proposition that barring gay and lesbian individuals from marrying promotes procreation.

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Prop. 8's true purpose appears to be moral disapproval of gay men and lesbians and their families. . . . The evidence will show that the campaign materials used in conjunction with Prop. 8 emphasize messages that bear no relationship whatsoever to any of the state interests proffered by proponents in this case. The campaign was in fact designed not to appeal to the value of "traditional marriage," but rather to appeal to fear and disapproval of gays and lesbians and their family relationships.

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