Gay marriage Prop. 8 trial enters last phase before ruling

Closing arguments in the Prop. 8 gay marriage trial begin Wednesday. Judge Vaughn Walker must decide whether to hold sexual orientation, like race, to the 'strict scrutiny' standard.

By , Staff writer

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    Plaintiffs in the Prop 8 gay marriage trial pose outside a San Francisco court room Wednesday morning. From left they are Paul Katami, Jeff Zarrillo, Kris Perry, and Sandy Stier.
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Chief US District Judge Vaughn Walker has scheduled a full day of arguments Wednesday, the final step before he rules on a lawsuit arguing that California's Prop. 8 violates the constitutional rights of gay and lesbian couples. The first federal court test in the nation of a state law forbidding same-sex nuptials, it is widely expected to push the gay marriage issue to the US Supreme Court.

In January, Judge Walker conducted an unprecedented three-week trial featuring a number of experts and other witnesses who testified on the impact of the law, which California voters backed in 2008, restricting the definition of marriage to between a man and a woman.

Analysts say the stakes are high.

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“What’s at stake here is much more than whether lesbians and gays can once again marry in California,” says Geoff Kors, executive director of Equality California. “This is really the first time the federal courts are looking at whether a majority of voters can take away the rights of one specific minority while keeping them for themselves. It should be of interest to anyone who can be impacted by discrimination. If this is allowed to stand, there is nothing stopping voters from taking rights away from other minorities.”

But legal observers shy away from predicting an outcome because there are legal precedents on both sides.

The decision will have to do with whether and how sexual preference fits into the definition of “suspect classification” – with other subsets of that category that include race, age, religion, and income level, says political scientist Robert Langran, a constitutional scholar at Villanova University. The US Supreme Court “almost never” upholds discriminatory laws against race, he says, but whether that also applies to sexual orientation is an unknown.

Mr. Langram says the standard a law must meet in the race category is “strict scrutiny,” meaning a very high level. For the categories of gender, age, and income, “the courts have gone a lot with the standard of intermediate scrutiny – which is you better have a very good reason [for discriminating] but it doesn’t have to be overwhelming.” Langran says he is not sure where sexual orientation will come in such a scale.

“This is one of those cases where I can see the court going either way, because they have precedents either way,” says Langran. For example, Colorado citizens passed a law in 1992 that said that no local governing body can pass any law treating sexual orientation as a “suspect classification.” The Colorado voters were trying to ensure that gays didn't receive special treatment. [Editor's note: The original version mischaracterized the Colorado legislation.]

The US Supreme Court later struck down the initiative as unconstitutional under the equal protection clause of the US Constitution. That is the standard Walker will have to weigh.

“At issue is whether Proposition 8, the successful ballot measure defining marriage as between a man and a woman, violates the Equal Protection Clause in the United States Constitution,” says Jessica Levinson, an adjunct professor of law at Loyola Law School.

"If Judge Walker determines that restrictions on the bases of sexual orientation, like those made on the basis of race, should be subject to the highest level of judicial review, strict scrutiny, then Judge Walker may find this Proposition to be unconstitutional," writes Ms. Levinson. "However, whether he will do that is far from clear. “

Supporters of the plaintiffs in the case are optimistic that Walker will strike down Prop. 8.

“The most instructive thing about the trial will be demonstrated again today, is that there is no constitutionally-sound basis for excluding same-sex couples from marriage," says Kate Kendell, executive director of National Coalition for Lesbian Rights. She has been watching the trial from the courtroom.

"The evidence has not shown that children do better with a mother and father than a same sex couple or that same sex marriage undermines or hurts heterosexual unions," she says. "The only basis for excluding same sex couples is people’s fear and discomfort. The American system of justice provides protection and equality in the face of such biases and prejudices.”

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