This week, the Proposition 8 trial draws to a close.
This is the trial that never should have been, by a judge who has systematically telegraphed his sympathy for one side.
The lawyer for the plaintiffs is Ted Olson, once a GOP advocate for judicial restraint. Yet this week, he will be pleading with the judge to nullify the votes of 7 million Californians -- and, by extension, the votes of millions of Americans in other states who have exercised their right to vote for marriage as the union of husband and wife.
Perry v. Schwarzenegger is not a case about California law. This is the case that will decide the future of marriage for the entire country.
When I entered this debate in 2003, gay marriage advocates scoffed at the idea that a federal constitutional amendment was necessary. Now gay marriage advocates applaud as Ted Olson tells the world that our marriage laws are grounded only in hatred and bigotry, that they are akin to racism. Ted Olson's team actually read Catholic and Baptist doctrine into the court record, to persuade the judge that to be a Christian is to be a bigot.
Will it go that far?
I hope not. But that is the heart of the case against Prop 8: Gay marriage advocates believe there isn't any difference between two men in a sexual union and a husband and wife, and those of us who see this difference are blinded by hatred and prejudice. They delegitimize opponents, brand us as haters, and then try to strip us of our rights.
The trial that wraps up this week in California has a special resonance for me and many others. Hundreds of thousands of Americans invested their time, their treasure, their blood, sweat and tears to defend at the ballot box what they saw as an important principle: Marriage is the bringing together of male and female in a union like no other.
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For these Americans, gay marriage does not merely expand marriage to more people, it abolishes the historic core conception of marriage and replaces it with a new government-mandated genderless marriage. Gay marriage means that our maleness and femaleness does not matter, our capacity to create new life is irrelevant to the public project of marriage. Henceforth by government decree marriage will mean a commitment of any two people; marriage will become a product of individual desire not rooted in any natural order, not rooted in our history or traditions and, incidentally, also not rooted in any coherent vision of constitutional limits on what government courts can do.
I am flying to San Francisco to be there at this historic moment, to live blog the event for the National Organization for Marriage. The last time I was in the Bay Area a few months ago I was sitting in an upscale bar in Oakland talking to a friend. A young woman, pretty, well-dressed, educated, walked over to my table and proceeded to yell at me. "You should be ashamed of yourself!" she said. I looked her in the eye and told her simply I was very proud of the work that I did, although I understood she disagreed. That made her even madder. "You should go South," she sputtered. "Go South, this is San Francisco!"
Actually it was Oakland, but I took her point. It was an illuminating moment. Here was an educated young woman who believed she had a right to purify an entire American city of those who disagreed with her about gay marriage. She behaved in a way that I would describe as uncivilized, but she saw herself as a great champion of civility, of tolerance, and of civil rights.
Ted Olson will talk in court this week like a civilized man. But Ted Olson, as much as any one man, is responsible for the idea that there is no real debate to be had about gay marriage, that all the legitimacy, all the arguments, all the good will and good reasons are on his side. He will be asking this judge to disrespect the views of his fellow Americans, to brand them ignorant, irrational and bigoted, and to take away our right to vote for marriage. And he will be bathed in applause for doing so.
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