Second-Class Citizens Get Their Day in Court

06/16/2010 05:50 pm ET | Updated May 25, 2011

It may seem unlikely in the summer of oily coastlines and persistent unemployment, but Wednesday, June 16, could well be remembered as a day of renewed optimism, at least in the annals of civil rights. Why? Because this is when closing arguments have been scheduled for Perry vs. Schwarzenegger, the landmark case challenging California's same-sex marriage ban. The story doesn't end here, of course--no one doubts that it'll be appealed all the way to the Supreme Court--but the judge's ruling in the non-jury trial should be an important beginning, a milestone on the road to marriage equality.

To reach that decision, US District Judge Vaughn Walker has asked plaintiffs' and defense attorneys to prepare answers to dozens of questions, among them "What is the import of evidence showing that marriage has been historically limited to a man and a woman?" and "What evidence in the record shows that same-sex marriage is a drastic or far-reaching change to the institution of marriage?" I wish I could watch their responses as easily as I can a 24/7 undersea gusher, but the Supreme Court voted 5-4 to ban cameras from the San Francisco courtroom.

More than anything else, though, I wish I could ask the defense attorneys my own questions. I've wanted to do that since reading an interview with Ted Olson in the New York Times last summer, months after he filed a lawsuit on behalf of two gay couples asserting that Prop 8 treats gay men and lesbians as second-class citizens. This is the same conservative/libertarian Ted Olson, of course, who represented George W. Bush in Bush v. Gore, and who's joined in this case by former foe David Boies. When the Times reporter pointed out that his stand on gay marriage must surprise friends and supporters, Olson said, "For conservatives who don't like what I'm doing, it's, 'If he just had someone in his family we'd forgive him.'" In other words, "When someone in your family's gay, you can be supportive and plead insanity, out of love. Like with Dick Cheney. Everyone gets that."

When it comes to conservatives and their stances on the issues, this phenomenon is nothing new. Nancy Reagan bucked the GOP party line and supported stem cell research, these people note, but that's understandable, because her husband had Alzheimer's, a generative disease that might be helped by it. And although the Reagan administration was hostile to gun control, after press secretary James Brady was nearly shot to death by John Hinckley, Jr., he laudably helped launch what became the Brady Center to Prevent Gun Violence. I'm not talking about hypocrisy here, which everyone knows is endemic to politics. I'm talking about compassion, and a lack of imagination, and the tendency for right wingers to suffer from a paucity of both.

So what I'd like to ask those who support Prop 8 is this: How do you define a family? Would you give Olson a pass if his wife's nephew were gay? What about his neighbor? An old friend? At one point does a person cease to be a loved one who deserves the same happiness as you, and becomes instead "one of those people," someone with "an agenda" who's asking for "special treatment"? And while we're at it, why wouldn't a person think "She's not my child/sibling/parent/spouse, but she's someone else's child/sibling/parent/spouse, and her family cares for her as much as we care about ours!"? Or, as in this case, "My son is young and hasn't come out as gay, but he might some day, and then would I really want him to be treated as less than equal to his peers?"

Why do some people need to be personally affected by an issue before it's possible for them to empathize with those who are, and what can we do about it? When we can answer that question, we'll be better able to achieve not only marriage equality, but human rights equality, at least in the eyes of the law.