Gay Rights Groups Seek Overturn of California's Proposition 8

Both sides claim history is on their side in first federal gay marriage trial.

January 11, 2010, 12:06 PM

Jan. 11. 2010—, 2010 -- The first federal trial to determine if the U.S. Constitution prohibits states from outlawing gay marriage began Monday in San Francisco -- with emotional testimony from two gay men who, their lawyers argued, had been rendered "inferior and unequal" in the eyes of the law.

Some of the most influential constitutional lawyers in America are involved in the case, which puts Proposition 8, the California ban on same-sex marriage, on trial and will likely set the stage for a fight in the U.S. Supreme Court that could determine whether or not gay marriage will be recognized everywhere in the United States.

The trial, which is expected to last three weeks and feature testimony from historians, psychologists and legal scholars, began with tear-filled testimony from plaintiffs Jeff Zarillo and Paul Katami, two California men who have had a relationship for nine years.

"That's not enough," Zarillo, 36, told a packed courtroom when asked if gays should be content with domestic partnerships. "It's giving me part of the pie, but not the whole thing."

Forty states have laws banning same-sex marriage, and in their opening statements Monday in San Francisco, lawyers defending and opposing the state's ban each claimed history was on their side.

Lawyers for gay rights groups described legalizing same-sex marriage as the next chapter in the civil rights movement. They said it was akin to ending laws that stopped whites and blacks from marrying.

Lawyers defending the ban, backed by a broad coalition of conservative religious groups, argued that the ban is not discriminatory but simply codifies an historic understanding of what constitutes marriage.

"This case is about marriage and equality. The plaintiffs are being denied both the right to marry and equality under the law," said attorney Theodore Olson, representing Zarillo and Katami, a lesbian couple, Kristin Perry and Sandra Stier and a gay rights group, the American Foundation for Equal Rights, which brought the lawsuit.

Interrupted by District Court Chief Judge Vaughn Walker during his opening statement and asked why the courts should be involved in a debate that was being handled by both the legislature and directly by voters, Olsen said, "We wouldn't need a Constitution if we left everything to the political process."

Same-Sex Marriage: Proposition 8 on Trial

Olsen was joined at the plaintiff's table by David Boies. Olsen and Boies, working together on this case, famously opposed each other in Bush vs. Gore, the historic Supreme Court case that determined the 2000 presidential election. Boies represented George W. Bush and Boies represented Al Gore.

Charles Cooper, the chief lawyer defending Proposition 8, said it represented the will of the people, who, by a majority of 52 percent, voted to prohibit gay marriage in California.

Cooper argued that marriage's "essential purpose is procreation" and the idea that it should be between a man and woman "crosses history, crosses cultures, crosses society."

Both Olsen and Cooper invoked President Barack Obama.

When asked by Walker for evidence that changes in marriage had improved the institution, Olsen replied, "The president of the United States."

Olsen said Obama's black father and white mother would not have been allowed to marry in Virginia before the Supreme Court's decision to allow interracial marriages in 1967.

Cooper, however, said comparisons to interracial marriage were irrelevant because through the millennia, the fundamental component of a couple's identity that was important was not race but gender.

"The limitation of marriage to a man and a woman is something that has been universal. It has been across history, across cultures, across society. The loathsome restrictions based on race are of an entirely different nature."

To illustrate their argument that Prop. 8 "causes pain and humiliation," lawyers for the plaintiffs called Zarillo and Katami as their first witnesses, before a break.

They will each be cross examined by the defense later in the day.

Some 100 supporters and opponents of the ban peacefully rallied outside the courthouse today.

Hollywood director Rob Reiner, an advocate of same-sex marriage rights, was in the gallery at the trial.

Walker, as well as lawyers for both sides, have all said they expect any ruling in the case to be appealed, opening the door to a battle in the U.S. Supreme Court.

In 2003, the Supreme Court struck down state laws against same-sex sodomy between consenting adults and ruled in 1996 that laws motivating anti-gay bias were unconstitutional.

Same-sex marriage is currently legal in only five states and the District of Columbia. Forty states have laws that define marriage as a union between a man and a woman.

Walker initially said he would allow for video recordings of the proceedings to be released daily on YouTube, but he was overruled today by the Supreme Court, which strictly prohibits cameras in most federal courtrooms.

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