California court hears closing arguments in same-sex marriage case

By Robert Barnes
Thursday, June 17, 2010

SAN FRANCISCO -- A landmark federal trial that could lead to a constitutional right for same-sex couples to marry ended Wednesday with competing views about the traditional role of marriage and whether the battle represented the latest frontier of the nation's civil rights struggle.

Two stalwarts of Washington's conservative legal community argued before Chief U.S. District Judge Vaughn R. Walker, but this time on opposite sides.

Walker is being asked to decide whether California voters violated the U.S. Constitution's guarantees of due process and equal protection when they passed a referendum in November 2008 to amend the state constitution, defining marriage as between a man and a woman.

Washington lawyer Charles J. Cooper, arguing on behalf of Proposition 8 backers, told Walker that it is "crucial to the public interest" to limit marriage to opposite-sex couples. It is "fundamental to the very existence and survival of the human race" that society promote marriage to ensure that procreative relations are in "enduring, stable unions," with a goal that children be raised by both parents.

Cooper said California voters are in line with the rest of the country, where referendums on allowing same-sex marriage have met with defeat for gay-rights advocates. The record in the judicial branch is similar, he said: More than two-thirds of judges who have considered the issue have ruled against same-sex marriage.

"It is a judicial tsunami they are asking you to sail into," Cooper told Walker. He said the judge needed to find only that voters had a rational basis for their definition of marriage to find the amendment constitutional. Thirty states have such restrictions in their constitutions.

Cooper's counterpart, former U.S. solicitor general Theodore B. Olson, told Walker that the times called for boldness.

Representing two same-sex couples who want to marry, Olson invoked groundbreaking Supreme Court civil rights decisions, such as Brown v. Board of Education, which forbade racial segregation in public schools, and Loving v. Virginia, which threw out that state's law against interracial marriage.

"Proposition 8 discriminates on the basis of sex the same as Virginia law discriminated on the basis of race," Olson said.

Walker replied that, when the Supreme Court decided Loving, the number of states that barred interracial marriage had dwindled from more than 40 to less than half that. "There was already a tide running with respect to interracial marriage," Walker said. "Do we have a political tide here that's going to carry the Supreme Court?"

Walker also candidly worried that having the judiciary find a right to same-sex marriage, rather than producing such a change through the political process, might cause the kind of intractable national dilemma that he said had consumed the country for 30 years.

Olson said he assumed Walker was referring to abortion, but said this issue was different. Allowing gays to marry, he said, would be granting them participation in what the Supreme Court has declared for more than a century to be a fundamental right.

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