Trial over California’s ban on same-sex marriage begins

SAN FRANCISCO — A widely anticipated federal trial over the constitutionality of California’s
ban on same-sex marriage opened Monday, with lawyers and witnesses
debating the meaning of marriage and sexual orientation and gay couples
testifying about the humiliation of being denied matrimony.

While supporters of same-sex marriage demonstrated in the fog outside and the U.S. Supreme Court
wrangled with whether to allow broadcast of the trial, the case moved
along briskly, with sometimes tearful testimony from two gay couples
who brought the lawsuit and an explanation of the roots of marriage by
a Harvard historian.

The lawsuit charges that Proposition 8’s
reinstatement of a ban on same sex-marriage violates U.S.
Constitutional guarantees of equal protection and due process. The
constitutionality of the ban is expected to eventually reach the U.S. Supreme Court as a landmark case.

Two legal giants — former Solicitor General Theodore Olson and attorney David Boies, who were on opposing sides in the Supreme Court case that gave George W. Bush the presidency — have joined forces in Perry v. Schwarzenegger seeking to eventually persuade the U.S. Supreme Court to overturn marriage bans.

In his opening argument for the gay couples, Olson
called marriage “one of the most vital personal rights” and a “basic
civil right.” Withholding it from gays and lesbians “doesn’t make
sense,” he said.

U.S. District Chief Judge Vaughn R. Walker asked if the state should simply get out of the business of issuing marriage licenses.

“That may solve the problem,” Olson replied, but insisted it “would never happen.”

Walker also asked Olson if voters were entitled to pass laws stemming from “moral disapproval,” such as prohibitions on alcohol.

Olson replied that U.S. history was filled with
moral condemnation of people based on their race, gender and ethnicity.
Proposition 8, passed by 52.3 percent of California voters in 2008, perpetuates discrimination “for no good reason,” Olson said.

Charles Cooper, who is representing the Proposition 8 campaign and who also has argued many cases before the Supreme Court,
told Walker that a limitation of marriage to opposite-sex couples has
“prevailed in virtually every society since early history.”

Walker reminded Cooper that many states previously
barred interracial marriage. Cooper replied that those laws were based
on a notion of “white supremacy,” and not a longstanding tradition.

Cooper said the evidence would show that
opposite-sex marriage is good for children, and that the “procreative
purpose of marriage” would be “diluted or weakened” if same-sex couples
are permitted to marry.

When Walker asked what evidence existed to show that
same-sex marriage would “radically alter the institution of marriage,”
Cooper replied that data from the Netherlands
will show that it leads to a decline in marriage rates. He said it also
would lead to more children being raised outside marriage and higher
divorce rates.

But he added that same-sex marriage is still too
rare and novel an “experiment” to draw conclusions about its long-term
impact. Noting that only five states and seven countries permit
same-sex marriage, Cooper said, “The people of California are entitled to await the results of that experiment.”

Jeffrey J. Zarrillo, one of the plaintiffs, was the
first to be called to the stand. Zarrillo, 36, a manager in the
entertainment industry, testified tearfully about being denied the
right to marry Paul T. Katami, his partner of nearly nine years and also a plaintiff.

“He is the love of my life,” Zarrillo said. He
testified that marriage “is the logical next step” for him and Katami.
It would send the message that they are serious and committed to each
other, he said. Checking into hotels with Katami is often “awkward,” he
said. Clerks sometimes ask them if they meant to reserve a king-size
bed, he said.

To eliminate confusion and embarrassment, he said, he would like to say, “My husband and I are here to check in for our room.”

Asked whether he might one day marry a woman, he said he felt no attraction or desire to be with a member of the opposite sex.

Katami, 37, a group fitness manager, called himself
“a natural-born gay” and testified that being denied marriage felt like
being “relegated to a corner.”

“I don’t think of myself as a bad person,” Katami said in response to questions from Boies.

During cross-examination, attorney Brian W. Raum noted that nothing in the proposition suggested that children needed to
be protected because gays were bad. Katami was on the only one of the
four plaintiffs to be questioned by the defense.

Raum, an attorney with the Alliance Defend Fund, a Christian legal advocacy group, put into evidence a film clip of two parents in Massachusetts complaining that their son’s second-grade teacher read the class a book about two princes getting married.

Olson questioned Kristin M. Perry and Sandra B. Stier, a lesbian couple from Berkeley, Calif., with four sons who tried to get a marriage license last May and failed. They are the lead plaintiffs.

The couple married in San Francisco in 2004, but the California Supreme Court later invalidated those marriages because the state’s marriage ban was still in place.

When her marriage was invalidated, Perry, 45, who
runs a state agency for children, said she felt that “I am not good
enough to be married.” She said she and Stier decided not to marry
during the brief time same-sex marriage was legal in California in 2008 because they feared their marriage would again be struck down.

Commercials for Proposition 8 implied that voters needed to protect children from people like her, Perry said.

“I felt like I was being used,” Perry testified.
“The fact that I am the way I am and I can’t change the way I am was
being mocked and disparaged.”

All of the plaintiffs testified that domestic
partnership was substantially different from marriage. They complained
they did not have access to the word “marriage” to explain their
relationships and felt either shunned or pitied by others.

The day ended with testimony from Harvard history Professor Nancy Cott, an expert in the history of marriage in the United States.

She said Cooper’s opening statement that marriage
between two members of the opposite sex was universal was inaccurate.
Ancient Jews were polygamous, she said, and in some countries Muslims
can marry several women.

She said the U.S. Supreme Court denied Dred Scott citizenship partly on the grounds that he was not permitted to marry a white woman.

The court said that was a “stigma that marked him as less than a full citizen,” she testified.

“In marrying, one is exercising a right of freedom,” she said.

At the start of the trial, Walker announced that the Supreme Court had prevented the broadcast of the proceedings on the Internet and to other courthouses pending further review.

The temporary order will remain into effect until
Wednesday. Walker called it “highly unfortunate” that the federal court
system has yet to resolve the “public right to access.”

Walker noted that 138,542 people had sent the court
messages of support for public dissemination of the trial and only 32
opposed it.

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