Lawyer argues that gays denied fundamental right by California marriage ban

Lawyer: Gays denied right by Calif marriage ban

SAN FRANCISCO — The landmark federal trial over the constitutionality of California’s gay marriage ban resumed Wednesday, with a lawyer arguing that supporters of the ban were trying to deprive same-sex couples of a relationship the U.S. Supreme Court has recognized as a fundamental right.

Chief U.S. Judge Vaughn Walker set aside five hours to hear closing arguments in the closely watched case.

Former U.S. Solicitor General Theodore Olson argued for the two same-sex couples who sued to overturn voter-approved Proposition 8, claiming it was a violation of their civil rights.

Olson said the U.S. Supreme Court has repeatedly recognized marriage as a fundamental right — one afforded to prisoners serving life sentences and child support scofflaws — while refusing to make procreation a precondition of marriage, as evidenced by laws allowing divorces and contraception.

“It is the right of individuals, not an indulgence to be dispensed by the state,” Olson said. “The right to marry, to choose to marry, has never been tied to procreation.”

Sponsors of the proposition had failed to prove that the ability of heterosexual couples to procreate without reproductive technology provided justification for denying marriage to same-sex couples, Olson said.

Judge Walker pressed Olson on the point.

“That is a difference,” Walker said. “And why is that difference not one the Legislature or voters could rationally take into account in setting the marriage laws in California?”

Olson also stressed that Proposition 8 sponsors had failed to prove allowing gay marriages would harm the institution of marriage or society as a whole.

The lawyer argued that Proposition 8 was based on prejudice because the main campaign message its sponsors used in 2008 warned voters the measure was needed to prevent children from learning about same-sex marriage.

“Protect our children from learning or being taught that gay marriage is OK, and that means that gay people’s marriage is not OK, and that means gay people are not OK,” Olson said.

The judge asked whether he must find that Proposition 8 was unconstitutional if it was based on “discriminatory motive on the part of voters to impose some private morality through the initiative process?”

He also asked if the gay marriage ban would have to be overturned if voters enacted the ban based on their common experience and impressions.

Olson answered the law would be unconstitutional in either case.

“I’m willing to admit there are plenty of good people in California who voted for Proposition 8 because they are uncomfortable with gay people, and they are uncomfortable with the idea that gay people are just like us,” he said.

But just as with laws that banned interracial marriage, “they are not permitted under the Constitution to put that view into the law, to put that view into the Constitution of their state to discriminate against other people,” he said.

The judge heard 12 days of testimony in January and could hand down his decision to uphold or strike down the voter-approved ban in a matter of weeks.

Closing arguments were previously delayed to give Walker time to review the evidence.

“It may be appropriate that the case is coming to closing argument right now,” the judge said. “June is after all the month for weddings.”

Plaintiff Jeffrey Zarrillo is suing to overturn Proposition 8 with his partner, Paul Katami, and a lesbian couple from Berkeley, Kristin Perry and Sandy Stier.

Last week, the judge gave lawyers on both sides a list of 39 questions he expects them to address during the hearing.

Walker also set aside time to hear from lawyers for Attorney General Jerry Brown’s office and for the city of San Francisco, which joined the case to argue that denying gays the right to wed has negative economic consequences for local governments.

Walker is being asked to overturn the 2008 ballot measure passed five months after the state Supreme Court legalized gay marriage and after an estimated 18,000 couples from around the nation had tied the knot.

Depending on how he rules, Walker could decide the case in a way that leaves the gay marriage bans in 44 other states vulnerable to attacks under the U.S. Constitution.

Whatever the judge does likely will be reviewed by the 9th U.S. Circuit Court of Appeals and could well wind up before the Supreme Court.