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Gay marriage trial begins with tough questions for both sides

Opening arguments began Monday in what could be a landmark trial for gay marriage. The case, which challenges California's ban on same-sex marriage, Proposition 8, could go to the US Supreme Court.

By Michael B. FarrellStaff writer / January 11, 2010

Supporters of gay marriage rally outside the federal courthouse in San Francisco, California Monday.

Robert Galbraith/Reuters

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San Francisco

The federal trial challenging California’s gay marriage ban opened Monday, setting the stage for a legal battle over the meaning of marriage and whether or not limiting it to heterosexual couples amounts to unconstitutional discrimination.

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Two same-sex couples filed suit over Proposition 8, the 2008 voter-approved initiative that defined marriage as a union of a man and a woman, on the grounds that it violates their 14th Amendment rights to equal protection under the law.

The trial, which is the first federal case questioning the constitutionality of same-sex marriage bans, is expected to eventually make its way to the US Supreme Court for what could amount to a landmark decision on gay marriage. In all, voters in 31 states have passed bans on gay marriage.

Because of the intense nationwide interest in the case, last week Chief US District Judge Vaughn Walker agreed to allow it to be streamed online on a delayed basis. The US Supreme Court, however, intervened Monday and said it would give the matter more consideration before allowing the case to be recorded and available on the court's website.

The Supreme Court said it would rule on the matter by Wednesday.

Opening arguments

The trial began Monday with opening arguments.

Theodore Olson, a litigator best known for representing George W. Bush in the Supreme Court case that decided the 2000 election, is one of the lead attorneys representing the couples. He argued that closing the institution of marriage to gay and lesbian couples “classifies people into different categories” and “inflicts a badge of inferiority” on them.

“Marriage is central to life in America.... Proposition 8 ended the dream of marriage for the plaintiffs and hundreds of thousands of Californians,” Mr. Olson said.

Charles Cooper, lead counsel for Proposition 8 supporters, said that California voters in 2008 simply “restored” the traditional definition of marriage after a state Supreme Court ruling allowed the state to begin issuing marriage licenses to same-sex couples. The same court, however, upheld Prop. 8 in May 2009.

“The limitation of marriage to a man and woman has been something that has been universal,” said Mr. Cooper. Gay marriage, he said, “will inevitably change the institution.”

The judge's questions

Judge Walker often interrupted both Olson and Cooper with tough questions. He asked Cooper, for instance, why thinking about marriage hasn’t evolved enough to allow same-sex couples to participate in the institution, much the same way limits on interracial couples were lifted in the late 1960s.

Cooper argued that those racial restrictions had “nothing to do with the definitional” feature of marriage that has historically been an institution between a man and woman. Marriage, he said, was a “pro-child” relationship that was designed to protect and promote healthy relationships for children and not meant as an endorsement of private relationships.

He also said that the democratic process – not the courts – should determine when society is ready to accept gay marriage.

When Walker asked Olson why the courts and not voters or lawmakers should decide the issue, he said it was the courts' responsibility to protect the rights of minorities.

“Time after time the courts have addressed these issues,” Olson said. “If we left everything to the political process the majority would always prevail ... but that’s not so good if you’re a minority.”

The trial is expected to last about three weeks.

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