DEBORAH AMOS, host:
Now to California, where two couples - one gay, one lesbian - have challenged the state's ban on same sex marriage. Two years ago, voters there approved the ban on a measure known as Proposition 8.
Supporters of Prop 8 say they're only trying to preserve the traditional definition of marriage. But the two couples say it's an infringement of their civil rights. Closing arguments were presented in a federal trial yesterday. NPR's Richard Gonzales reports.
RICHARD GONZALES: Federal Judge Vaughn Walker allowed lawyers for and against same sex marriage five hours for closing arguments - this on top of 12 days of testimony in January.
GONZALES: Opponents of Prop 8 were represented by a prominent conservative, former Solicitor General Ted Olson. He said that supporters of Prop 8 were trying to deny gays and lesbians the fundamental right to marriage already recognized by the Supreme Court. Here's how he put it in a news conference after closing arguments.
Mr. TED OLSON (Plaintiffs' Attorney): The Supreme Court said it's inherent in the right to privacy, in liberty, in association, in a spirituality, and to be able to identify ourselves. That is the quintessential right of Americans and its being taken away.
GONZALES: Olson compared this suit to another landmark case about marriage, Loving vs. Virginia. That's the 1967 case in which the Supreme Court ruled that interracial couples have the right to marry.
Mr. OLSON: The proposition doesn't want people to have the full choice. You can marry anyone you want unless it's a person of the same sex. And it's based upon a sexual orientation discrimination, which the Supreme Court said intimate private sexual behavior is protected by the Constitution.
GONZALES: But the attorney for the supporters of the gay marriage ban, Charles Cooper, rejected the comparison with interracial marriage. The real issue, he argued, is that marriage exists for the procreation of children who are raised in stable relationships.
Cooper said that the people of California had the right to preserve this traditional definition of marriage.
Mr. CHARLES COOPER (Defense Attorney): The central and overriding question is whether the issue before the court, which was before the people of California, should be decided in his courtroom by him or whether it should - an issue like this should be decided by the people themselves.
GONZALES: During the testimony stage in January, the opponents of the ban called eight expert witnesses who testified on the sociology, economics and history of marriage. The supporters called only two, who testified that marriage should be limited to a man and a woman.
Austin Nimocks of the Alliance Defense Fund, a group opposing gay marriage, said his side remained confident that they made their case.
Mr. AUSTIN NIMOCKS (Senior Legal Counsel, Alliance Defense Fund): Defending Prop 8 is playing defense. It's the burden of proof, which Judge Walker made abundantly clear, that belongs to the plaintiffs to have to prove that Proposition 8 is unconstitutional.
GONZALES: Prior to closing arguments, Judge Walker gave both sides a list of 39 questions on all aspects of their cases. Marc Spindelman is a law professor at Ohio State University.
Professor MARC SPINDELMAN (Ohio State University): It looks from the questions, like he's thinking through all of the possible consequences of the different avenues of decision, even to the smallest detail.
GONZALES: And Spindelman says that whatever Judge Walker rules on same sex marriage, the case will wind up before the U.S. Supreme Court.
Richard Gonzales, NPR News, San Francisco.
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