Gay Marriage Ban Faces High-Stakes Test In Trial

Demonstrators for and against same-sex marriage protest in San Francisco. i i

hide captionDemonstrators for and against same-sex marriage protest during a rally Monday in front of the federal courthouse in San Francisco.

Paul Sakuma/AP
Demonstrators for and against same-sex marriage protest in San Francisco.

Demonstrators for and against same-sex marriage protest during a rally Monday in front of the federal courthouse in San Francisco.

Paul Sakuma/AP

Advocates and opponents of same-sex marriage both are anxiously watching a very high-profile, landmark federal trial that opened Monday in San Francisco. The legal showdown, which centers on whether a state ban on gay marriage violates the U.S. Constitution, features high-wattage legal talent and a parade of potential witnesses — all of which was almost set to be broadcast on YouTube.

The unusual proceeding stems from a legal challenge to Proposition 8, the same-sex-marriage ban approved by 52 percent of California voters in 2008.

It's a case that the primary named defendants, California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown, refused to defend. Instead, sponsors of Proposition 8 won permission to defend the law in court themselves.

As the first full-fledged federal trial to examine the constitutionality of a ban on gay marriage, it's almost certain to be appealed all the way up to the U.S. Supreme Court.

Indeed, the Supreme Court has already weighed in on one aspect of the case: a ruling by the trial judge, Chief U.S. District Judge Vaughn Walker, that would have allowed the entire proceeding to be broadcast on YouTube. Hours before the start of the trial, the Supreme Court issued an order blocking any broadcast until justices have more time to consider the issue.

Whether or not the trial eventually shows up on YouTube, it will feature an array of live witnesses, very likely including political scientists, legal experts, historians, psychologists, economists and the leaders of the Proposition 8 campaign, as well as the two same-sex couples who sued California for the right to marry. The experts are expected to debate such emotionally charged questions as what effect, if any, same-sex marriage has on child-rearing.

In the trial's opening statements, Charles Cooper, a lawyer for sponsors of the ban, said that the courts should adopt a wait-and-see approach because it is too early to assess whether and how gay marriages could change the nature of traditional marriage.

Theodore Olson, the attorney who represents the two couples, was questioned by the judge on how Proposition 8 could be discriminatory when California allows domestic partnerships. In response, Olson cited some state laws from the 1960s that banned interracial marriage and would have prevented President Obama's parents from getting married.

State By State: Gay Marriage In America

Representing the plaintiffs along with Olson is David Boies, who was Olson's opponent in the Supreme Court case Bush v. Gore. Boies represented former Vice President Al Gore in the trial over the disputed Florida recount in 2000, while the conservative Olson represented President George W. Bush

"Perhaps the greatest hope of the case is that it will reframe the debate about same-sex marriage in new sorts of ways, not least of all because it's not the gay-rights establishment that's leading the charge in court, but a team of superlawyers most famous for their role as adversaries in the 2000 election," says Marc Spindelman, a law professor at the Moritz College of Law at Ohio State University.

But it's also a case that initially divided the gay-rights community, which is concerned that federal courts remain too conservative to rule in their favor.

"The movement's organizers, who have been litigating on same-sex marriage over the past two decades, have made the very conscious decision to stick to state courts because of their view that the Supreme Court was not yet ready to take on this issue in a positive direction," says Arthur Leonard, editor of Lesbian/Gay Law Notes and a law professor at New York Law School. "I think they're taking a risk."

The stakes are very high for both sides. Gay-rights groups have been concerned that the conservative-leaning Supreme Court might be reluctant to strike down Proposition 8 at a time when several others states have passed much more restrictive laws banning same-sex marriage and, in some cases, civil unions.

Shawn Higgins (right) and his partner Robert Franco hug i i

hide captionShawn Higgins (right) hugs his partner, Robert Franco, in San Francisco after the California State Supreme Court voted to uphold the gay marriage ban in May.

Justin Sullivan/Getty Images
Shawn Higgins (right) and his partner Robert Franco hug

Shawn Higgins (right) hugs his partner, Robert Franco, in San Francisco after the California State Supreme Court voted to uphold the gay marriage ban in May.

Justin Sullivan/Getty Images

"Even the liberals on the Supreme Court have articulated in various ways that it may be a mistake for the court to get out too far ahead of the country on a divisive social issue too soon," says Spindelman. "An adverse ruling puts off for a generation at the very least recognition under the federal Constitution of a right to same-sex marriage."

Proposition 8's backers, however, have their own set of concerns. The case has to go through the 9th Circuit Court of Appeals, which has a reputation for being liberal.

Supporters of the same-sex-marriage ban have also watched the pretrial phase with some trepidation. Lawyers for ProtectMarriage.com, a coalition that campaigned for Proposition 8, have criticized many of Walker's pretrial rulings, including the unusual decision to allow live witnesses. Walker also ruled that the group would have to turn over internal communications relating to its public messaging campaigns, although that ruling was overturned by the appeals court.

"What is at stake is whether voters can rationally conclude that traditional marriage is a unique institution that promotes important interests respecting natural child-rearing, and that those interests are broader than the personal, private interests of the adults involved," Andy Pugno, the general counsel for ProtectMarriage.com, wrote in a recent blog posting. "And what is at stake is whether voters may consider their own moral and religious views about marriage — or any other subject — when casting their ballots."

Now that the trial has started, gay-rights groups have united behind the effort to overturn Proposition 8.

"Anytime there's litigation about what the full Constitution requires, there can be great opportunities for forward progress," says Jennifer Pizer, marriage director for Lambda Legal, a gay law-advocacy group. "This case certainly is exciting and promising, and it's way too early to guess what the outcome will be."

The trial, which is expected to last several weeks, is only the opening round of what is likely to be a multiyear effort.

Leonard says that Boies and Olson might be in a good position to win the first encounter, but the subsequent battles could be much more difficult.

"I would go out on a limb and say it's most likely the challengers will win in the District Court, and the most interesting thing is what will happen on appeal," he says.

The case could take several years to reach the Supreme Court, where justices have offered few clues about how they would be likely to rule.

"We don't really know where anyone on the court stands because no one has had to address it yet," Leonard says. "We don't even know who's going to be on the Supreme Court in two or three years if it takes that long to get up there."

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