Attorneys made their final arguments this week in San Francisco in a federal trial over the constitutionality of Proposition 8, the California initiative that banned same-sex marriage in the state two years ago.
The non-jury trial before U.S. District Court Judge Vaughn Walker was the nation's first on a U.S. constitutional challenge to a prohibition on gay marriage. It began in January.
The lead attorney for the plaintiffs, former U.S. Solicitor
General Theodore Olson, told Walker Wednesday morning that same-sex couples' "fundamental constitutional right to marry has been taken away" in California by Proposition 8.
"Their state has stigmatized them as unworthy of marriage, different, and less respected," he said.
Both Olson and the plaintiffs' other lead counsel, David Boies, notably faced off in Bush v. Gore in 2000, but are now arguing on the same side that marriage for same-sex couples is a fundamental right.
The attorneys, who represent gay and lesbian couples from Berkeley and Burbank, are seeking to strike down the measure on the basis that it violates the couples' federal constitutional rights to equal protection and due process.
Proposition 8, approved by 52 percent of California voters in
2008, overturned a ruling by the California Supreme Court earlier that year that held there is a state constitutional right to same-sex marriage. In the interim prior to the election that November, about 18,000 gay and lesbian couples throughout the state were married.
San Francisco Mayor Gavin Newsom, who first permitted same-sex couples to marry in the city in 2004 before the state Supreme Court stepped in and invalidated them, was among those in the audience for the morning session of Wednesday's hearing.
Olson contended that the sponsors of Proposition 8 had changed the focus of their argument against same-sex marriage -- from protecting children from learning that gay marriage is okay, during the campaign for the measure, to now defending the traditional view of marriage as for procreation.
"They just don't know whether same-sex marriage will harm the institution of traditional marriage," he said.
Olson said the preponderance of the evidence presented during the trial supported just the opposite. He also played video clips of his clients' emotional testimony at trial about how committed the couples were to each other and how allowing them to marry would make them feel more acceptance by society and less shame.
Olson drew parallels to the U.S. Supreme Court ruling decades ago allowing interracial marriage.
Attorney Charles Cooper, representing the sponsors of Proposition 8, maintained in his closing argument Wednesday afternoon that marriage has traditionally been defined throughout history by societies as exclusively opposite-sex, and the primary purpose has been procreation. He said that definition is "fundamental to the very existence and survival of the human race."
Walker noted, however, that parental responsibilities also extend to adoptive parents, in-laws and grandparents.
Walker also observed that the 1967 Supreme Court decision declaring bans on interracial marriage unconstitutional was preceded by a social movement throughout the country.
"Why are we not at that same tipping point here, with respect to same-sex marriage?" he asked Cooper.
Cooper replied that the 1967 decision did not contradict the core procreative purpose of marriage.
Walker will issue a ruling at a later date. But the ruling will likely be appealed to the 9th U.S. Circuit Court of Appeals and possibly on to the U.S. Supreme Court.