Sharp Words Open California Same-Sex Marriage Case

By JESSE McKINLEY
New York Times
January 11, 2010

SAN FRANCISCO — In the opening volleys in the federal trial over the fate of California’s ban on same-sex marriage, lawyers for both sides were sharply questioned by the judge overseeing the trial, raising the possibility of high drama in a case that is being anxiously watched by gay-rights groups and supporters of traditional marriage nationwide.

Supporters of gay marriage rallied outside the federal courthouse in San Francisco on Monday.

Just hours before the testimony began here, the United States Supreme Court intervened in the case, temporarily staying a decision last week by Judge Vaughn R. Walker, who is hearing the case, to allow the proceedings to be streamed to other federal courtrooms in other states and distributed online. Supporters of the ban, Proposition 8, objected to that plan and early Monday, the Supreme Court ordered a stop to any “real-time streaming” outside the courtroom until Wednesday afternoon, giving the justices more time to consider the issue.

The trial, however, continued. Supporters and opponents of Proposition 8 — which was passed by 52 percent of California voters in 2008 and established marriage as between only men and women — started rallying in front of the courthouse before dawn. By the time the trial began just after 9 a.m. Pacific time, Judge Walker’s courtroom was packed with lawyers, spectators and members of the news media, as was an overflow room on another floor, where the proceedings are being streamed.

Judge Walker set a questioning tone early, repeatedly interrupting an opening statement by Theodore B. Olson, a lead counsel for the plaintiffs — two gay couples who filed their suit in the spring after the California Supreme Court upheld Proposition 8. The judge asked Mr. Olson why domestic partnerships, which are allowed in California, were not sufficient for gay couples and wondered what kind of evidence would be introduced to show harm to same-sex couples who are not allowed to marry.

Mr. Olson, a prominent conservative litigator whose co-counsel is David Boies, his foe from the 2000 battle over the presidential election, countered that marriage “was a building block of family, neighborhoods and community” in America, and that to deny gays that right was to effectively make them second-class citizens. Proposition 8, he said, “isolated gay men and lesbian individuals and said, ‘You’re different.’ ”

During the trial, which is expected to last three weeks, Mr. Olson and Mr. Boies are expected to argue that Proposition 8 violates the 14th Amendment’s guarantee of equal protection and due process and falls in line with other historical prohibitions on marriage, including some states’ ban on interracial marriages, that were overturned by the Supreme Court.

Advocates for Proposition 8, who assert that Californians were well within their rights to establish a definition of marriage, were also pointedly queried by Judge Walker.

Charles J. Cooper, the lead counsel for the defense, opened his case by arguing that limitation of marriage to men and women was a tradition “across history, across cultures and across societies” meant to “channel natural procreative activities between men and women” into stable relationships.

But Judge Walker interrupted Mr. Cooper to ask about other marital benefits like companionship and support, and he noted that there were no restrictions on marriage for heterosexual couples who could not or did not want to have children. The judge also questioned the assertion by Mr. Cooper that same-sex marriage would “radically alter” traditional marriage and could decrease marriage rates for heterosexuals.

Mr. Cooper conceded that hard statistical evidence on such issues was limited — “confident and reliable judgments cannot be made” — but argued that same-sex marriage was “too novel of an experiment” for California to try. He also said that it was not the role of any court — including the Supreme Court, where the case is expected to eventually end up — to “reflect the attitudes of the American people.”

“That’s what they have ballot booths for,” Mr. Cooper said.

The case comes as gay-rights groups have suffered several setbacks, including the defeat of same-sex marriage legislation in New York and New Jersey and a vote last fall that overturned such unions in Maine. Efforts to overturn Proposition 8 with another ballot measure in California also face uncertain prospects, with most major groups having decided to wait until at least 2012 to go back to the voters.

All of which has heightened expectations for this case. Several of the figures who helped pass Proposition 8 are expected to be called to testify under oath, as are experts for the defense.

Mr. Olson said his case planned to call experts on history, economics and psychology to show “the grievous harm” caused to gays and lesbians who are not allowed to marry, and he used often sharp-elbowed rhetoric to describe their plight, calling — for example — domestic partnerships a “badge of inferiority” that sounds like a “commercial venture.”

In one particularly passionate exchange, Judge Walker asked why the courts should intervene in Proposition 8.

Mr. Olson paused. “That is exactly why we have courts, why we have the Constitution and why we have the 14th Amendment,” he said, adding that while some groups “may not be the most popular people,” the court still should uphold their rights. “That is why we are here today.”