Theodore B. Olson, one of the lawyers opposing the anti-gay marriage initiative, warns of ‘very, very tragic’ consequences.

By Maura Dolan, Los Angeles Times
October 20, 2010

The suicide of a Rutgers University freshman last month and a later attack in the Bronx on two teenagers suspected of being gay stemmed from discrimination and isolation that measures like Proposition 8 perpetuate, opponents of the measure told an appeals court.

“Incidents such as these are all too familiar to our society,” wrote Theodore B. Olson, one of the lawyers for two gay couples challenging the 2008 California anti-gay marriage initiative.

“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.”

Olson’s arguments to the U.S. 9th Circuit Court of Appeals, filed late Monday night, referred to the suicide of Tyler Clementi, 18, who jumped off the George Washington Bridge after his roommate used a webcam to video him in a gay sexual encounter. The incident a few days later involved an alleged anti-gay attack by a gang in an unoccupied apartment in the Bronx.

Olson also argued that striking down Proposition 8 would not require the court to create a constitutional right to same-sex marriage. The 9th Circuit is considering an appeal of a district court ruling in August that found Proposition 8 unconstitutional.

Just as the U.S. Supreme Court struck down a Virginia ban on interracial marriage without creating a new right to interracial marriage, the court could overturn California’s gay marriage ban on the grounds that all persons are free to decide whether or whom to marry, Olson wrote.

He conceded that voters who supported Proposition 8 were not necessarily motivated by malice. Quoting from an opinion by Justice Anthony Kennedy, Olson said prejudice may result “from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different.”

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