As Lindenberger argues, the case has finally put the issue of same-sex marriage before the federal courts, setting the stage for a landmark decision, either way the judge rules and however the case is finally decided upon appeals. "Both sides see it as a crucial test of whether society can insist that heterosexual unions are worthy of the full sanction of the law in a way that other unions are not," he reports.
Lindenberger also makes this assertion: "For decades, governments at every level have created one set of rules for heterosexuals in America, and another set for its gays and lesbians." This is only partly true, for in reality governments have established "one set of rules" for married heterosexual couples and "another set" for everyone else. In other words, same-sex couples are not alone in having been denied a legal right to marry.
The unusual legal team of David Boies and Ted Olson -- famous adversaries in the 2000 case, Bush v. Gore -- made their case against California's "Proposition 8" amendment prohibiting same-sex marriage almost entirely on the argument that opposition to homosexuality is nothing but evidence of moral objections rooted in religious faith. This argument becomes crucial when understood in the context of the 2003 Supreme Court decision in the case Lawrence v. Texas, in which the nation's high court ruled that mere "moral opprobrium" is no basis for a denial of any right to homosexuals.
Lindenberger then explains:
For his part, Boies told TIME that the trial has shown that legal discrimination against gays — in particular rules banning their marriage — starts with simple prejudice, in the form of religion-inspired views about the morality of homosexuality itself. "The Southern Baptist Convention describes homosexuality as an 'abomination,'" Boies told TIME, as he prepared for what would be three days of sometimes blistering cross-examinations as the trial wound down. "The Catholic Church calls homosexual activity 'gravely immoral.' Who is kidding whom? These are sincerely held beliefs, to which they are certainly entitled. But no one ought to kid themselves that what is behind [efforts to ban gay marriage] is anything other than a majority imposing its beliefs on other people."
In fact, Boies and Olson made this the central argument of their case against Proposition 8. As Mathew Staver, now dean of the Liberty University School of Law, commented, "What struck me is that the plaintiffs have tried to put Christianity on trial rather than Prop 8."
Then Lindenberger reports this:
The Rev. Albert Mohler, a leading figure in the fight against gay marriage, says that in light of Lawrence, he understands Boies' line of attack. But he told TIME that marriage is different. It is "the central institution of human society." "The problem with that argument is that the current case has to do with marriage, not merely with the right to engage in certain sexual acts," says Mohler, who is the longtime president of the flagship seminary of the Southern Baptist Convention in Louisville, Ky. "There are more than ample grounds to argue that the sustenance of marriage is necessary for the flourishing of human culture. Thus, anything that damages marriage or subverts its place in society is deleterious in its effects. Throughout history, societies have regulated marriage with this danger in mind, recognizing in marriage the privileged status granted to the heterosexual union as the best context for procreation and the raising of children — functions understood to be vital to the society's well-being. The argument put forth by Boies would mean the effective deregulation of marriage, since his arguments already presented in court could be proposed by any number of others, including those representing polygamists.
