“Preaching to bishops,” a long-dead churchman told me years ago, “is like farting at skunks. You’ll win some battles, but lose the war.” All the more so, no doubt, the higher you go. His Holiness, Their Eminences and Excellencies—“Don’t cross ’em,” the curate cautioned; “those boyos aren’t to be tampered with.”

Among the blessings of my work as a funeral director is that it has put me in earshot of the reverend clergy trying to make sense of senseless things: the man who kills his wife, their poodle, and then himself; a mother who drowns her baby then does her nails; the teenager with the broken heart and loaded pistol; the tumors and emboli, flus and tsunamis, deadly contagions and misadventures—the endless renditions of the Book of Job. When someone shows up—priest or pastor, rabbi or imam, venerable master or fellow traveler—to stand with the living and the dead and speak into the gaping maw of the unspeakable, I know I am witnessing uncommon courage and my perennially shaken faith is emboldened by theirs.

“Behold, I show you a mystery,” they always say. They are balm and anointing, these men and women of God, frontline infantry and holy corpsmen in the wars long waged between faith and fear.

Which is why the recent ecclesiastical mischief by rear- and upper-echelon sorts seems cartoonish, unseemly, so lacking in gravitas by comparison. The papal poaching of “traditionalist” Anglicans (to wit: those put off by female clerics and homosexuals) is but one sup of thin gruel boiled up lately by the hierarchies. Another is the carping of Archbishop Raymond Burke (late of St. Louis, latterly installed in the Vatican) at Cardinal Séan O’Malley’s generous opening of the church’s arms to the corpse and people of the late Edward Kennedy—an epic senator and sinner, self-confessed. Then there is its decidedly downsized version (for mid-careerists): the Right Rev. Thomas Tobin’s harangue on the sacramental options open to the late senator’s son, Patrick, who votes with his caucus on matters of civil law. “Erratic” is the word His Excellency used to describe the congressman’s conduct—twisting the prick of insinuation, as we Irish-American Catholics so deftly do.

In Ireland, the shoes of the fishermen are on the other foot. Coincident with the worst flooding in memory, budget woes and recession, and nationwide public-sector strikes, the report of Judge Yvonne Murphy on priestly abuses in the Dublin archdiocese is not so much a reiteration of old news about pedophiles as it is a stark indictment of the up-line of hierarchs who colluded with civil authorities to provide cover and protection for such criminals. Some bishops, it turns out, behaved like “company guys,” obstructing inquiry, hushing complaints, covering the tracks of abusers, protecting the interests of the world’s oldest merger-and-acquisition firm from any whiff of scandal. Their calculated malfeasance has done permanent damage to the faithful and to faithful priests who will spend the rest of their lives trying to repair trusts they never had a hand in breaking. The Murphy Report and the stonewalling from Rome have occasioned calls for the removal of the papal nuncio, for the immediate sacking of bishops (four subsequently resigned), for the removal of public schools from diocesan sponsorship, and for the church to be once and forever disentangled from the civic life of holy Ireland.

While back at home, the Vatican’s investigation of American women religious makes many of us who were well schooled in faith and morals by nuns even more devoutly lapsed than we’ve been for years. Trying to retain the imitation of Christ our faith calls us to while removing ourselves from the endless contretemps and imbroglios of the church’s princely caste is becoming more the mug’s game than ever.

The church is already served by a “priesthood” of women, gay bishops, and good Catholics who have long ignored the preachments of the old boys on sexual matters. To be blind to what is while proclaiming what isn’t is not faith. It is denial. The church’s people have moved along, even if the prelates won’t.

Bringing the dead and their families into church is something I’ve been doing all my life, first with my father, then with my brothers and sisters, now with my sons and nieces and nephews. It is our family’s thing: what we’ve been “called” to do. Not by voices from on high or burning bushes, but by human voices, in the middle of the night, the middle of dinner, the middle of otherwise uneventful days. They call for help when there is trouble. And I know when the clergy who meet us in the journey—whether male or female, gay or straight, celibate or sexually active, whether robed in talliths or white chasubles, Brooks Brothers suits or business casual, reciting from Bible or Torah, Qur’an or Zen koan, with incense, icon, or ancient liturgy—I know they bring a brave and sacred narrative to bear on the existential questions: Is that all there is? Can it happen to me? Are we all alone? What comes next?

In earshot of such powerful medicines, the high-churchy intrigues and inquisitions, the connivance of bishops seems a waste of God’s precious gifts of grace and time.

The federal trial over the unconstitutionality of Proposition 8 began today with an opening statement by attorney Theodore Olson, who with David Boies is leading the legal team assembled by the American Foundation for Equal Rights to litigate the case Perry v. Schwarzenegger. Opening statements will be followed by testimony from Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, who comprise two couples who wish to be married but who were denied marriage licenses because of Proposition 8.

After the opening statement David Boies gave the direct examination of Jeff Zarrillo and Paul Katami.

OPENING STATEMENT
(as prepared)

This case is about marriage and equality.  Plaintiffs are being denied both the right to marry, and the right to equality under the law.

The Supreme Court of the United States has repeatedly described the right to marriage as “one of the vital personal rights essential to the orderly pursuit of happiness by free men;” a “basic civil right;” a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.

In short, in the words of the highest court in the land, marriage is “the most important relation in life,” and “of fundamental importance for all individuals.”

As the witnesses in this case will elaborate, marriage is central to life in America.  It promotes mental, physical and emotional health and the economic strength and stability of those who enter into a marital union.  It is the building block of family, neighborhood and community.  The California Supreme Court has declared that the right to marry is of “central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society.”

Proposition 8 ended the dream of marriage, the most important relation in life, for the plaintiffs and hundreds of thousands of Californians.

___________________________________

In May of 2008, the California Supreme Court concluded that under this State’s Constitution, the right to marry a person of one’s choice extended to all individuals, regardless of sexual orientation, and was available equally to same-sex and opposite-sex couples.

In November of 2008, the voters of California responded to that decision with Proposition 8, amending the State’s Constitution and, on the basis of sexual orientation and sex, slammed the door to marriage to gay and lesbian citizens.

The plaintiffs are two loving couples, American citizens, entitled to equality and due process under our Constitution.  They are in deeply committed, intimate, and longstanding relationships.  They want to marry the person they love; to enter into that “most important relation in life”; to share their dreams with their partners; and to confer the many benefits of marriage on their families.

But Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity.

In the words of the California Supreme Court, eliminating the right of individuals to marry a same-sex partner relegated those individuals to “second class” citizenship, and told them, their families and their neighbors that their love and desire for a sanctioned marital partnership was not worthy of recognition.

During this trial, Plaintiffs and leading experts in the fields of history, psychology, economics and political science will prove three fundamental points:

First – Marriage is vitally important in American society.

Second – By denying gay men and lesbians the right to marry, Proposition 8 works a grievous harm on the plaintiffs and other gay men and lesbians throughout California, and adds yet another chapter to the long history of discrimination they have suffered.

Third – Proposition 8 perpetrates this irreparable, immeasurable, discriminatory harm for no good reason.

I

MARRIAGE IS THE MOST IMPORTANT RELATION IN LIFE

Plaintiffs will present evidence from leading experts, representing some of the finest academic institutions in this country and the world, who will reinforce what the highest courts of California and the United States have already repeatedly said about the importance of marriage in society and the significant benefits that marriage confers on couples, their families, and the community.  Proponents cannot dispute these basic facts.

While marriage has been a revered and important institution throughout the history of this country and this State, it has also evolved to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past.  Marriage laws that disadvantaged women or people of disfavored race or ethnicity have been eliminated.  These changes have come from legislatures and the courts.  Far from harming the institution of marriage, the elimination of discriminatory restrictions on marriage has strengthened the institution, its vitality, and its importance in American society today.

II

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS, THEIR CHILDREN AND THEIR COMMUNITIES

Proposition 8 had a simple, straightforward, and devastating purpose:  to withdraw from gay and lesbian people like the Plaintiffs their previously recognized constitutional right to marry.  The official title of the ballot measure said it all: “Eliminates Right of Same-Sex Couples to Marry.”

Proponents of Proposition 8 have insisted that the persons they would foreclose from the institution of marriage have suffered no harm because they have been given the opportunity to form something called a “domestic partnership.”  That is a cruel fiction.

Plaintiffs will describe the harm that they suffer every day because they are prevented from marrying.  And they will describe how demeaning and insulting it can be to be told that they remain free to marry—as long, that is, that they marry someone of the opposite sex instead of the person they love, the companion of their choice.

And the evidence will demonstrate that relegating gay men and lesbians to “domestic partnerships” is to inflict upon them badges of inferiority that forever stigmatize their loving relationships as different, separate, unequal, and less worthy—something akin to a commercial venture, not a loving union.  Indeed, the proponents of Proposition 8 acknowledge that domestic partnerships are not the same as traditional marriage.  Proponents proudly proclaim that, under Proposition 8, the “unique and highly favorable imprimatur” of marriage is reserved to “opposite-sex unions.”

This government-sponsored societal stigmatization causes grave psychological and physical harms to gay men and lesbians and their families.  It increases the likelihood that they will experience discrimination and harassment; it causes immeasurable harm.

Sadly, Proposition 8 is only the most recent chapter in our nation’s long and painful history of discrimination and prejudice against gay and lesbian individuals.  They have been classified as degenerates, targeted by police, harassed in the workplace, censored, demonized, fired from government jobs, excluded from our armed forces, arrested for their private sexual conduct, and repeatedly stripped of their fundamental rights by popular vote.  Although progress has occurred, the roots of discrimination run deep and its impacts spread wide.

III

PROPOSITION 8 HARMS GAY AND LESBIAN INDIVIDUALS FOR NO GOOD REASON

Proposition 8 singles out gay and lesbian individuals alone for exclusion from the institution of marriage.  In California, even convicted murderers and child abusers enjoy the freedom to marry.  As the evidence clearly establishes, this discrimination has been placed in California’s Constitution even though its victims are, and always have been, fully contributing members of our society.   And it excludes gay men and lesbians from the institution of marriage even though the characteristic for which they are targeted—their sexual orientation—like race, sex, and ethnicity, is a fundamental aspect of their identity that they did not choose for themselves and, as the California Supreme Court has found, is highly resistant to change.

The State of California has offered no justification for its decision to eliminate the fundamental right to marry for a segment of its citizens.  And its chief legal officer, the Attorney General, admits that none exists.  And the evidence will show that each of the rationalizations for Proposition 8 invented by its Proponents is wholly without merit.

“Procreation” cannot be a justification inasmuch as Proposition 8 permits marriage by persons who are unable or have no intention of producing children.   Indeed, the institution of civil marriage in this country has never been tied to the procreative capacity of those seeking to marry.

Proposition 8 has no rational relation to the parenting of children because same-sex couples and opposite sex couples are equally permitted to have and raise children in California.  The evidence in this case will demonstrate that gay and lesbian individuals are every bit as capable of being loving, caring and effective parents as heterosexuals.  The quality of a parent is not measured by gender but the content of the heart.

And, as for protecting “traditional marriage,” our opponents “don’t know” how permitting gay and lesbian couples to marry would harm the marriages of opposite-sex couples.  Needless to say, guesswork and speculation is not an adequate justification for discrimination.  In fact, the evidence will demonstrate affirmatively that permitting loving, deeply committed, couples like the plaintiffs to marry has no impact whatsoever upon the marital relationships of others.

When voters in California were urged to enact Proposition 8, they were encouraged to believe that unless Proposition 8 were enacted, anti-gay religious institutions would be closed, gay activists would overwhelm the will of the heterosexual majority, and that children would be taught that it was “acceptable” for gay men and lesbians to marry.  Parents were urged to “protect our children” from that presumably pernicious viewpoint.

At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens:  (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008,  who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination.  Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest.  All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored.  And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples.  It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

It is unconstitutional.