Will California gay-marriage trial go to Supreme Court?

Initially, a divide over Prop. 8 challenge

That shift may explain the softening of the initial opposition in the gay-rights movement to the San Francisco challenge. Last May, the American Civil Liberties Union, the National Center for Lesbian Rights, and Lambda Legal denounced the lawsuit as the wrong strategy for California's gay community. Since then, all three have filed briefs supporting it.

Plaintiffs in the case against Proposition 8 are two same-sex couples, Kristin Perry and her longtime partner, Sandra Stier, along with Paul Katami and Jeffrey Zarrillo. But the driving force behind the lawsuit is the American Foundation for Equal Rights, a well-funded gay-rights group. It hired an unlikely but prominent pair of litigators. Democratic attorney David Boies and conservative Theodore Olson were on opposing sides in the Gore v. Bush case that decided the 2000 presidential election, but they have found common ground in their support for gay marriage.

"Proposition 8 ended the dream of marriage for the plaintiffs and hundreds of thousands of Californians," Mr. Olson told the court Jan. 11. He said the ballot measure created separate categories of people – making gay couples inferior to heterosexual ones – and by doing so, violated the constitutional guarantee to equal protection under the law.

The defense in the case called their first witnesses Monday. The main defendants, ProtectMarriage.com, the coalition that put Proposition 8 on the ballot, and the Alliance Defense Fund, a conservative group, have their own heavyweight. Their lead counsel is Charles Cooper, the assistant US attorney general in the Reagan administration, who argued against gay marriage in Hawaii in the 1990s.

The civil rights analogy

Arguments on both sides center on a key question: Does denying marriage to same-sex couples amount to unconstitutional discrimination? And is the battle for gay marriage equivalent to the civil rights fight to lift restrictions on interracial marriages?

Those opposed to gay marriage say no. Californians have the right to alter their constitution to "restore" marriage as a union between heterosexual couples, Mr. Cooper said in court. It doesn't amount to a constitutional violation the way bans on interracial marriage do, he argued, because racial restrictions "had nothing to do with the definitional feature of marriage."

But same-sex marriage would change the definition of marriage as we know it, he said. "The limitation of marriage to a man and woman has been something that has been universal."

Marriage should evolve with society, Olson countered, "to shed irrational, unwarranted, and discriminatory restrictions and limitations that reflected the biases, prejudices or stereotypes of the past."

The lawsuit unfolding in California could take years to make it to the Supreme Court. The court may not even accept the case. Before Loving v. Virginia, a majority of states had already invalidated laws against interracial marriage. Today, all but five states limit marriage to a man and woman. The issue of gay marriage, said New Jersey state Sen. John Girgenti (D), who supports civil unions but voted against the same-sex marriage bill, goes to "the heart of our society and how we define who we are."

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