A federal judge in California heard closing arguments today in the landmark legal case that will determine the constitutionality of California's same-sex marriage ban, first approved by voters as Proposition 8 in November 2008.
The ballot measure, launched in response to a state supreme court decision allowing gays and lesbians to wed, took effect after 18,000 same-sex marriages had been performed in California, sparking a fierce legal and political debate. Chief U.S. District Judge Vaughn Walker will now weigh whether the measure amounts to unconstitutional discrimination.
Supporters of Prop 8 have argued that voters endorsed a "fundamental, definitional feature" of marriage that has historical roots "in this country and, almost without exception, in every civilized society that has ever existed."
But the plaintiffs in the case -- one lesbian and one gay couple -- say the legacy of restricting marriage to a man and a woman is "constitutionally inadequate ground" for denying same-sex partners a "vital personal right" protected by the 14th Amendment providing equal protection.
Walker's decision, which is not expected for several weeks, will likely be appealed and may ultimately reach the U.S. Supreme Court, where a decision could have the potential to transform social and legal precedent like the famous 1954 Brown v. Board of Education decision, which desegregated schools, and the 1967 Loving v. Virginia decision, which ended laws banning interracial marriage.
Lawyers for both sides made their final case in court today and responded to a series of questions submitted by Judge Walker last week in advance of the hearing.
Representing the plaintiffs are a pair of unusual bedfellows: former Republican Solicitor General Ted Olson and Democrat David Boies, who opposed Olson in the Bush v. Gore case before the Supreme Court in 2000.
Attorney Andy Pugno, of the conservative advocacy group Protect Marriage, and former Justice Department lawyer Charles Cooper are defending Proposition 8, after neither California Attorney General Jerry Brown nor Gov. Arnold Schwarzenegger moved to defend the measure on behalf of the state.
Lawyers Face Tough Questions Over Prop 8
Among the questions Walker asked Olson and Boise to address in their closing arguments is whether voters who believe "genuinely but without evidence" in legitimate reasons for restricting marriage to opposite-sex couples are infringing on constitutional rights. The plaintiffs are also asked to provide evidence that recognizing same-sex marriages would reduce discrimination toward gays and lesbians and provide benefits to the state.
Walker asked Pugno and supporters of the marriage ban to provide concrete evidence that allowing same-sex weddings would harm the institution of marriage itself. He also asked, among other things, how banning the marriages would improve the chances of a child being raised by both a mom and dad given that the state already permits same-sex couples to adopt children.
"Historic marriage has its roots in pairing a man to a woman and has served as the foundation of the family and society as a whole," wrote Pugno in a recent blog post. "To change the definition of marriage... would result in such a profound change to the structure and public meaning of marriage as to severely damage society, possibly beyond repair."
But the plaintiffs argue in their court brief that Proposition 8 is "the result of disapproval or animus against a politically unpopular group" and represents "a backlash that stripped gays and lesbians of the rights previously conferred upon them by the California Supreme Court...and violates the equal protection clause of the Fourteenth Amendment."
The two-and-a-half week trial, which began in January and has been delayed for procedural reasons, included testimony from more than a dozen academic experts, philosophers, historians, and psychologists who parsed the nature of marriage, homosexuality and family life. The court also heard testimony on the political influence of groups on both sides of the debate.
Five states -- Massachusetts, Iowa, Connecticut, Vermont and New Hampshire -- and the District of Columbia currently perform same-sex marriages. Four states recognize marriages performed elsewhere, and nine states grant civil unions or partnerships.
Following Judge Walker's ruling, the case will likely be appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco and is expected to ultimately reach the U.S. Supreme Court.