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California court hears closing arguments in same-sex marriage case
Interpreting the Constitution is not a job that allows a judge to wait until the public opinion polls improve, Olson said. "Some judge is going to have to decide what we've asked you to decide," he said.
The personal notes came at the end of a long day. Walker had presided over a 2 1/2 -week trial in January, but procedural matters delayed closing arguments until Wednesday. When he entered the packed courtroom -- a pro-gay-rights audience crowded two additional courtrooms with closed-circuit video broadcasts of the proceedings-- Walker saw tables filled with high-powered lawyers from Washington, New York and California.
"All this legal talent that seems to be focused on one person at the moment," the judge said good-naturedly. But he and others, inside the courtroom and out, realized that this was likely to be only the first stop in a process headed to the Supreme Court.
The plaintiffs are Kris Perry and Sandy Stier, a lesbian couple from Berkeley with four children, and Paul Katami and Jeffrey Zarillo, longtime partners from Burbank. They are represented not only by Olson, who represented George W. Bush in Bush v. Gore, but also by Olson's Democratic rival in that case, David Boies.
The two men put on an elaborate case for Walker, with their own clients, social scientists, psychologists and experts on marriage providing testimony. Cooper called only two witnesses, and, in his questioning, Walker seemed peeved that the Proposition 8 backers did not do more.
Cooper said they did not need to do more than show that California voters were simply being cautious in making sure that the traditional definition of marriage was not changed. The state's Supreme Court two years ago Wednesday said gays had the right to marry, and 18,000 couples took advantage of it.
Cooper said his side had to show only that including same-sex marriages would not further the "procreation goal that is at the heart of marriage."
But Olson said they did not even do that. "Now tell me how it helps the rest of the citizens of California to keep [gays] out of the club?" he asked.
Walker is expected to rule this summer.