SAN FRANCISCO – A widely anticipated federal trial over the constitutionality of California’s ban on same-sex marriage opened Monday, with lawyers and witnesses debating the meaning of marriage and sexual orientation and gay couples testifying about the humiliation of being denied matrimony.
While supporters of same-sex marriage demonstrated in the fog outside and the U.S. Supreme Court wrangled with whether to allow broadcast of the trial, the case moved along briskly, with sometimes tearful testimony from two gay couples who brought the lawsuit and an explanation of the roots of marriage by a Harvard historian.
The lawsuit charges that Proposition 8’s reinstatement of a ban on same sex-marriage violates U.S. constitutional guarantees of equal protection and due process. The constitutionality of the ban is expected to eventually reach the U.S. Supreme Court as a landmark case.
In his opening argument for the gay couples, attorney Theodore Olson called marriage “one of the most vital personal rights” and a “basic civil right.” Withholding it from gays and lesbians “doesn’t make sense,” he said.
U.S. District Chief Judge Vaughn R. Walker asked if the state should simply get out of the business of issuing marriage licenses.
“That may solve the problem,” Olson replied, but insisted it “would never happen.”
Charles Cooper, who is representing the Proposition 8 campaign and who also has argued many cases before the Supreme Court, told Walker that a limitation of marriage to opposite-sex couples has “prevailed in virtually every society since early history.”
Walker reminded Cooper that many states previously barred interracial marriage. Cooper replied that those laws were based on a notion of “white supremacy,” and not a long-standing tradition.
Cooper said the evidence would show that opposite-sex marriage is good for children, and that the “procreative purpose of marriage” would be “diluted or weakened” if same-sex couples are permitted to marry.
Jeffrey J. Zarrillo, one of the plaintiffs, was the first to be called to the stand. Zarrillo, 36, a manager in the entertainment industry, testified tearfully about being denied the right to marry Paul T. Katami, his partner of nearly nine years and also a plaintiff.
“He is the love of my life,” Zarrillo said. He testified that marriage “is the logical next step” for him and Katami. It would send the message that they are serious and committed to each other, he said.
At the start of the trial, Walker announced that the Supreme Court had prevented the broadcast of the proceedings on the Internet and to other courthouses pending further review.
The temporary order will remain in effect until Wednesday. Walker called it “highly unfortunate” that the federal court system has yet to resolve the “public right to access.”
Walker noted that 138,542 people had sent the court messages of support for public dissemination of the trial and only 32 opposed it.
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