California court hears closing arguments in same-sex marriage case

By Robert Barnes
Thursday, June 17, 2010; A05

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.

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.