The landmark federal trial over the constitutionality of California’s gay marriage ban resumed Wednesday, with a lawyer arguing that supporters of the ban were trying to deprive same-sex couples of a relationship the U.S. Supreme Court has recognized as a fundamental right.
Chief U.S. Judge Vaughn Walker set aside five hours to hear closing arguments in the closely watched case.
Former U.S. Solicitor General Theodore Olson argued for the two same-sex couples who sued to overturn voter-approved Proposition 8, claiming it was a violation of their civil rights.
Olson said the U.S. Supreme Court has repeatedly recognized marriage as a fundamental right _ one afforded to prisoners serving life sentences and child support scofflaws _ while refusing to make procreation a precondition of marriage, as evidenced by laws allowing divorces and contraception.
”It is the right of individuals, not an indulgence to be dispensed by the state,” Olson said. “The right to marry, to choose to marry, has never been tied to procreation.”
He said sponsors of the proposition had failed to prove that the ability of heterosexual couples to procreate without reproductive technology provided justification for denying marriage to same-sex couples.
Judge Walker pressed Olson on the point.
“They have identified a difference between opposite-sex and same-sex couples in that opposite-sex couples can procreate without the benefit of a third party. That is a difference,” Walker said. “And why is that difference not one the Legislature or voters could rationally take into account in setting the marriage laws in California?”
The judge heard 12 days of testimony in January and could hand down his decision to uphold or strike down the voter-approved ban in a matter of weeks.
Closing arguments were previously delayed to give Walker time to review the evidence.
“The period of time from the presentation is not anything that I would have wished or hoped for,” Walker said at the start of proceedings. “But it may be appropriate that the case is coming to closing argument right now. June is after all the month for weddings.”
Plaintiff Jeffrey Zarrillo is suing to overturn Proposition 8 with his partner, Paul Katami, and a lesbian couple from Berkeley, Kristin Perry and Sandy Stier.
“All we are asking the court to do is ensure we are protected under our Constitution the way Americans are supposed to be,” Zarrillo said as he entered court.
Last week, the judge gave lawyers on both sides a list of 39 questions he expects them to address during the hearing.
Walker gave lawyers for the plaintiffs the first 90 minutes to present their closing argument, and lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 two hours and 15 minutes to make their presentation.
In between, Walker has set aside time to hear from lawyers for Attorney General Jerry Brown’s office and for the city of San Francisco, which joined the case to argue that denying gays the right to wed has negative economic consequences for local governments.
Walker is being asked to overturn the 2008 ballot measure that outlawed same-sex marriages in California five months after the state Supreme Court legalized it and after an estimated 18,000 couples from around the nation had tied the knot.
The plaintiffs also are seeking an injunction that would prohibit the state from enforcing the measure and immediately allow gay marriage to resume in the state.
Depending on how he rules, Walker could decide the case in a way that leaves the gay marriage bans in 44 other states vulnerable to attacks under the U.S. Constitution.
The plaintiffs are arguing that such bans are based on unlawful bias, not legitimate societal aims, and therefore violate the civil rights of gay men and lesbians by denying them a basic civil right. That’s the same argument that was used to persuade the U.S. Supreme Court in 1967 to strike down state laws prohibiting interracial marriage.
Whatever the judge does likely will be reviewed by the 9th U.S. Circuit Court of Appeals and could well wind up before the Supreme Court.
