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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.

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“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.]

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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.”