Proposition 8 Gay-Marriage Trial Goes to Judge in California

San Francisco – The lead attorney defending Proposition 8 on the final day of a historic federal trial Wednesday said that gays have been subjected to a “shameful history” of discrimination but that voters had a right to limit them from marriage.

Voters, argued attorney Charles Cooper, had legitimate concerns about what the consequences of same-sex marriage might be for society and children, even if critics of gay marriage can’t prove that allowing gay couples to marry has a negative impact.

U.S. District Judge Vaughn Walker took final arguments Wednesday in the case brought by opponents to the 2008 initiative. No date has been set for his decision.

Theodore Olson, who gave closing arguments on behalf of two gay couples challenging the ban as unconstitutional, said the defense failed to show a good reason to let voters use the state constitution to bar gay people from a fundamental right such as marriage.

Walker peppered both sides with questions during the daylong hearing.

Cooper reiterated the defense argument that governments have a historical interest in “channeling” procreation into marriage so children can have the “optimal” benefit of having a mother and father as “role models.”

He quoted from a writer who expressed concern that gay marriage would “cut the link between sex and diapers,” and told Walker: “It is not possible to predict with certainty and confidence what that change will beget.”

Olson lashed out at Cooper’s arguments, saying that Cooper, under questioning by the judge last January early in the trial, said “I don’t know” and “we don’t have any evidence” when he was asked what harm might come from gay marriage.

“You can’t come in here and say, ‘I don’t have to prove anything,’ ” Olson said.

The plaintiffs’ attorney said gays weren’t asking for special rights and that a right for gays to marry should have existed – under the protections of the U.S. Constitution – long before courts and governments have approved it in other states. Declining prejudice has contributed to the opening of gay rights, he said, just as declining prejudice helped hasten striking down laws against interracial marriage.

“Tell me how it helps the rest of the citizens of California to keep them (gays) out of the club,” Olson said.

Proposition 8, which voters approved in November 2008, changes the state constitution to declare that marriage in California is only between a man and woman. The measure was put on the ballot after the California Supreme Court ruled in May 2008 that it was unconstitutional to bar gays from marrying. Thousands then decided to wed before Proposition 8 passed.

The state’s high court later ruled that voters had the right to amend the state’s constitution and that there was no federal precedent to block voters from limiting marriage to opposite-sex couples.

Two gay couples sued in federal court, claiming the measure violated their right to equal protection under the U.S. Constitution. Whatever Walker’s ruling, it may ultimately be appealed to the U.S. Supreme Court.

In January, Cooper and other Proposition 8 attorneys emphasized the contention that procreation has been a chief purpose of marriage. He repeated that interpretation Wednesday.

“The pages of history, your honor, are filled with nothing, nothing, your honor, but with this understanding of marriage,” Cooper told the judge.

Walker interrupted Cooper later to ask, “Do people get married to benefit the community?”

“The marriage relationship is fundamental to the existence of the (human) race,” Cooper said, adding that the state has an interest in seeing that children have stability so the government doesn’t have to step in and take over.

In the end, Cooper said, all voters needed was a “rational basis” to limit marriage. Millions believe in equality for gays, he said, “but draw the line at marriage.”

The plaintiffs’ attorneys argued that the Proposition 8 campaign relied on prejudice and irrational fear of gays by using slogans such as “protect children” from gay marriage.

Olson picked repeatedly at the testimony last January of the defense’s star witness, David Blankenhorn, the director of the Institute for American Values, which lobbies against gay marriage. Blankenhorn said he supports gay rights generally and believes gays have suffered discrimination.

Olson said Blankenhorn testified that gay couples and their children would benefit from being able to say they are part of a married family.

Olson quoted Blankenhorn as saying: “We would be more American the day we permit gay marriage.” With such remarks, the lawyer said, Blankenhorn “came over to our side.”