Judge has tough questions during opening statements of gay marriage trial in California

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Judge has tough questions in CA gay marriage trial

SAN FRANCISCO — A federal judge presiding over a highly anticipated gay marriage case peppered lawyers with questions Monday, asking if they had evidence the Constitution grants gays the right to marry and if states have a reasonable right to deny those marriages.

Chief U.S. District Judge Vaughn R. Walker, who is hearing the lawsuit aimed at overturning Proposition 8, California’s voter-approved ban on same-sex marriage, repeatedly interjected as lawyers for both sides presented opening statements.

Among other things, Walker asked how Proposition 8 could be discriminatory since California already allows domestic partnerships that carry the same rights and benefits of marriage.

“If California would simply get out of the marriage business and classify everyone as a domestic partnership, would that solve the problem?” the judge asked.

Former U.S. Solicitor General Theodore Olson, who represent two same-sex couples who filed the suit, answered that he did not think such a move would be politically feasible.

“I suspect the people of California would not want to abandon the relationship that the proponents of Proposition 8 spent a tremendous amount of resources describing as important to people, and so important it must be reserved for opposite-sex couples,” he said.

Olson quoted the U.S. Supreme Court’s own lofty description of matrimony to demonstrate what his clients were being denied.

“In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals,” Olson told a courtroom packed with witnesses, reporters and members of the public.

The case is the first federal trial on the constitutionality of state bans on same-sex marriage. Walker is hearing it without a jury.

Attorney Charles Cooper, who is representing Proposition 8 sponsors, said it’s too difficult to know the impact of gay marriage on traditional marriage because the practice is still so new.

Only five states have opened the institution to same-sex couples, and three of them had them imposed on them by judges, he said.

“While the people of California have been steadfast in their defense of marriage, they have also been generous in their extending of the rights and benefits and protections of marriage to the gay and lesbian population,” Cooper said.

He also noted that President Barack Obama doesn’t support legalizing gay marriage, a remark that prompted Judge Walker to note that Obama’s own parents would not have been allowed to get married in some states before the Supreme Court overturned state bans on interracial marriage in 1967.

“That indicates there is quite a change in individuals’ entitlement to enter the institution” of marriage, Walker said.

Regardless of the outcome of the case, it’s likely to be appealed to the U.S. Supreme Court, where it ultimately could become a landmark that determines if gay Americans have the right to marry.

About 100 people demonstrated Monday outside the federal courthouse. Most were gay marriage supporters who took turns addressing the crowd with a microphone. About a dozen gay marriage foes stood in the back of the gathering and quietly held signs demanding the ban remain in place.

Two hours before the trial was scheduled to start, the Supreme Court blocked video of the proceedings from being posted on YouTube.com. It said justices need more time to review that issue and put the order in place at least until Wednesday.

Over the weekend, Proposition 8’s sponsors sought to block YouTube broadcasts after Walker approved the plan last week, saying the case was appropriate for wide dissemination because it dealt with an issue of wide interest and importance.

Rick Jacobs, chairman of the Courage Campaign, a Los Angeles-based gay rights organization, said supporters of same-sex marriage were disappointed with the decision to bar cameras and called on the high court to lift its ban Wednesday.

“It’s time that the debate about marriage equality is seen for what it is — a debate over the rights of our friends and families to live their lives freely,” he said.

At trial, Walker intends to ask lawyers to present the facts underlying much of the political rhetoric surrounding same-sex marriage. Among his questions are whether sexual orientation can be changed and the effect on children of being raised by two mothers or two fathers.

Witnesses for Proposition 8 backers will testify that governments historically have sanctioned traditional marriage as a way to promote responsible child-rearing, and that this remains a valid justification for limiting marriage to a man and a woman.

Others expected to testify are academic experts from the fields of political science, history, psychology and economics, and the two plaintiff couples — Kristin Perry and Sandra Stier, who live in Berkeley, and Paul Katami and Jeffrey Zarrillo, who live in Los Angeles.

Associated Press Writers Paul Elias in San Francisco and Mark Sherman in Washington contributed to this report.