Former U.S. Solicitor General States Theodore Olson, a conservative, teams up with liberal attorney David Boies to challenge California's Prop. 8, which banned same-sex marriage. (Photo by Alex Wong/Getty Images)
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.
Former U.S. Solicitor General Theodore Olson delivered the closing argument for the two same-sex couples who sued to overturn voter-approved Proposition 8, claiming it was a violation of their civil rights.
Olson told Chief U.S. Judge Vaughn Walker 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."
Judge Walker pressed Olson on that point, noting Proposition 8 supporters have said opposite-sex couples can procreate without the benefit of a third party.
"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 answered that sponsors of the 2008 ballot measure could not cite tradition or speculation that allowing gays to wed would harm the institution of marriage as valid reasons to discriminate.
"'We have always done it that way' is a corollary to 'because I say so.' It's not a reason," Olson told the judge.
The lawyer argued that Proposition 8 was based on prejudice because the main campaign message used by its supporters warned voters it 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 said 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.
Lawyers for supporters of Proposition 8 were scheduled to deliver their closing argument later in the day.
Walker is being asked to overturn the ballot measure that outlawed same-sex marriages five months after the California Supreme Court legalized it and after an estimated 18,000 couples from around the nation had tied the knot.
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.
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.
Closing arguments were previously delayed to give Walker time to review the evidence and because of a skirmish between lawyers over evidence.
"The period of time from the presentation is not anything that I would have wished or hoped for," Walker said Wednesday. "But it may be appropriate that the case is coming to closing argument right now. June is after all the month for ... weddings."
The judge beamed as the remark was greeted with laughter.
Wednesday also was the two-year anniversary of the date when same-sex couples were first allowed to marry in California.
Last week, the judge gave lawyers on both sides a list of 39 questions he expects them to address during the hearing.
Walker also heard from lawyers 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 government.
"Government and taxpayers in part pay for the cost of that discrimination," Chief Deputy City Attorney Therese Stewart told Walker, citing lost wedding revenue and increased public health costs "created by stigma introduced by measures like Proposition 8."
The judge observed that gays and lesbians would continue to suffer the psychological pain of social bias even if courts invalidated Proposition 8.
Stewart allowed that was probably true but said government had to take a stand.
"When you have structural stigma endorsed by laws, it does send the message, and the message translates into things like hate crimes," she said.
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.