SAN FRANCISCO – A federal trial over California’s voter-approved marriage definition opened Monday with some unexpected questioning from the judge during the opening statements followed by the personal stories of the two gay couples behind the landmark case.
Prior to the testimonies, Chief U.S. District Judge Vaughn R. Walker questioned lawyers on both sides as they delivered their opening remarks, asking the plaintiffs’ side why the court should intervene in the gay marriage debate rather than allow the political process to run its course and asking the defendants’ side how restricting marriage based on sexual orientation is different from restricting marriage based on race.
“Limitation of marriage to a man and a woman is something that has been universal – across history, across cultures, across society,” noted Attorney Charles Cooper, who is representing sponsors of California’s Proposition 8.
“The loathsome restrictions based on race are of an entirely different nature,” he added, in response to Walker’s question.
Former U.S. Solicitor General Theodore Olson, representing the two same-sex couples who filed the suit, however, said California’s decision to define marriage as the union of one man and one woman adds another chapter to the long history of discrimination that the LGBT community has suffered at the hands of their fellow citizens and their government.
And while California allows same-sex couples to enter into domestic partnerships to obtain many of the rights afforded to heterosexual couples, Olson and the same-sex couples that testified Monday argued that domestic partnerships are not enough.
“Marriage is central to life in America,” noted Olson, referring to marriage as the building block of neighborhoods, communities, and societies.
And domestic partnerships “have nothing to do with love,” he added.
To make his point, Olson's Hollywood-funded team of attorneys later brought up the four plaintiffs – two gay couples who say they want their same-sex relationships to be seen by the public as no different from a committed opposite-sex relationship.
Olson argued that California’s marriage definition has created four categories of committed relationships – those of married couples, those of homosexuals married during the short time gay marriage was legal in the state, those of homosexuals married outside of California, and those not permitted to marry under Prop 8.
To confine homosexuals to domestic partnerships is discriminatory, Olson argued.
“It makes them second-class citizens,” he added, noting that even convicted murderers and child abusers have the right to marry.
This month's case, Perry vs. Schwarzenegger, is the first federal trial on the constitutionality of state bans on same-sex marriage and could lead to a precedent for whether gay marriage becomes legal nationwide.
In his opening statement, Olson said the institution of marriage has “evolved” and that while Prop 8 supporters talk about marriage as being a pro-child institution, marriage is not restricted nor tied to procreation.
Furthermore, Olson suggested that there was insufficient evidence showing that harm can come from defining marriage as the union of any two people who love one another regardless of gender.
“Whatever the motive, Prop 8 enacted an utterly irrational regime,” he said.
“Prop 8 labels gay and lesbian people as inferior, unequal, disfavored,” Olson later added. “It says to them ‘Your relationship is not the same.’ It stigmatizes gays and lesbians.”
San Francisco's Chief Deputy City Attorney, Therese Stewart, reiterated Olson’s sentiments in opening remarks immediately following his, proposing that Prop 8 makes gay relationships out to be inferior and immoral – relationships that can only mimic heterosexual ones.
“Prop 8 comes from and perpetuates intolerance,” added Stewart, who is herself openly gay.
While the plaintiffs’ lawyers attempted to paint the LGBT community as victims in need of the courts to step in, lawyers for the defendants insisted otherwise, noting that even though homosexuals only make up a very small percentage of the general population, they have made gains in nearly every state through the democratic process, whether it be in the area of same-sex marriage, civil unions, or other facets of society in relation to sexual orientation.
And they have much more support than they let on to – support that has been increasing.
For example, while 61.4 percent of California voters had voted in 1992 to prohibit the state from recognizing same-sex marriage, only 52.2 percent supported Prop 8, which defined marriage between a man and a woman.
“In short, evidence will show that the LGBT community has power. And Californians are largely supportive,” said Cooper in his opening statement, highlighting how the domestic partnership registry in California was the first of its kind in the United States, created by a legislature without court intervention.
Californians must, however, draw a line on what is and is not marriage.
If marriage is deinstitutionalized, it will lead to very real social harms, Cooper insisted.
When asked by Walker if there is any evidence that shows legalization of same-sex marriage leads to lower marriage rates and other unfavorable results, Cooper pointed to the Netherlands, which became the first country in the world to legalize same-sex marriage in 2001.
In the Netherlands, the marriage rate has declined steadily over the past decade, after about twenty years of little change.
But even if it wasn’t, Olson argued that same-sex marriage is too novel of an experiment to draw conclusions from.
“The institution of marriage is too vital for people of California to be asked to proceed without having collected that evidence and determine for themselves if it represents no threats to social interests or perhaps it does,” he added.
Cooper made clear that a line has to be drawn somewhere and that by shifting it, the line will be within reach of another minority.
If the purpose of marriage is to express love, to have public recognition of that love, and for personal fulfillment, then it would be difficult to say to someone who is in love with two people that they cannot have the right to marry them both, Cooper suggested.
“That’s not a far-fetched assumption in light of some modern conception,” he noted.
“Marriage as a pro-child institution has been diluted or weakened,” Cooper asserted.
With that, Cooper said the people of California have enough reason to wait until confidence and reliable understanding develops on the gay marriage issue.
He said it is no coincidence that every society and every culture throughout history has adopted and protected the one-man-one-woman model of marriage.
But Cooper also didn’t reject the idea that marriage is evolving and acknowledged that attitudes do change over time.
He insisted, however, that the political process – not a judge, not the courts, and not even the Supreme Court – should reflect the attitude of the people.
“That’s what they have ballots for,” he added.
Following the opening statements, each of the four plaintiffs were brought to the stand to share about their personal lives and to express their feelings of animosity against the Prop 8 campaign – particularly over its assertion that a vote for the constitutional amendment would be a vote to protect children.
Though the campaign’s child protection emphasis was focused on preventing indoctrination in schools by pro-gay activists, the plaintiffs interpreted the theme to imply that homosexuals are dangerous to children.
They also viewed the general threat of homosexuality highlighted in the campaign as a threat from people like them.
"I love kids," testified Paul Katami, 37, who says he’s been committed to his partner, 36-year-old Jeffrey Zarrillo, for nine years. "To think that you have to protect some children from me, from Jeff, there's no recovering from that."
The trial was set to resume Tuesday with testimony from the first expert witness, a U.S. history professor from Harvard.
The hearings, which will not be broadcast over YouTube following an 11th-hour order from the U.S. Supreme Court, are expected to continue for two to three weeks.
Regardless of the outcome, the case is likely to be appealed to the Supreme Court.
Christian Post Editor Kenneth Chan contributed to this article.