- The Washington Times - Wednesday, June 16, 2010

The trial on the constitutionality of California’s Proposition 8 wrapped up Wednesday in San Francisco federal court as attorneys made their closing arguments about same-sex marriage, with the pro-gay lawyer comparing his clients’ civil status to slavery-era blacks.

Nearly five months after the testimony phase of the trial ended, gay-marriage advocates rallied at the courthouse while a star-studded cast of legal talent returned for the courtroom finale of the closely watched case.

Chief U.S. District Court Judge Vaughn Walker is expected to issue a ruling this summer. He apologized at the outset for the delay in closing arguments, which were originally scheduled for March after the three-week trial wrapped up Jan. 27.

“I was hoping that we could get this case in before the present. But it may be appropriate that the case is coming to closing argument now. June is, after all, the month for weddings,” said Judge Walker, according to a real-time transcript filed by the American Foundation for Equal Rights.

The lawsuit was filed by four same-sex couples after California voters approved Proposition 8 in November 2008. The measure, which affirms that marriage is between one man and one woman, was placed on the ballot after the California Supreme Court ruled same-sex marriage to be a right in May 2008.

Attorney Ted Olson, making the closing argument against Proposition 8, contended that proponents had failed to show that same-sex marriage would harm the institution of marriage or impede society’s interest in procreation.

He compared the situation of gay couples to that of slaves. Under slavery at the time of the nation’s founding, slaves could not be married legally, and that being prohibited from marrying was “the very essence of slavery,” he said.

Mr. Olson said there was no logical reason for voters to support Proposition 8, and therefore they must have acted out of “animus.”

Judge Walker asked whether they might have relied on common sense.

“Yes, citizens can use their common sense. But what was their common sense in this case to take away the rights of individuals to marry?” said Mr. Olson. “Laws that can’t be explained by rational thinking give rise to an inference that they are based on prejudice.”

California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown both oppose Proposition 8 and so did not send attorneys to defend the law in court.

That left Charles Cooper to state the case for Proposition 8. Mr. Cooper, retained by Protect Marriage Now, the measure’s chief supporter, argued that marriage provides the necessary societal framework for responsible procreation and raising children in a stable household.

Mr. Cooper noted that two-thirds of judges have upheld traditional marriage in marriage-related cases, as has Congress when it enacted the Defense of Marriage Act. To say they, along with 7 million California voters, were acting out of animus is a “slur” that “denies the good faith of Congress, state legislature after state legislature, electorate after electorate.”

As with the trial itself, there was no televised coverage of the closing arguments. The U.S. Supreme Court blocked cameras in the courtroom in January after Proposition 8 attorneys argued that televising the proceedings could intimidate witnesses.

Whatever the outcome, the ruling is expected to be appealed to the 9th U.S. Circuit Court of Appeals and the U.S. Supreme Court.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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