Issue:  Vol. 48 / No. 3 / 18 January 2018

Breaking news:
Prop 8 trial gets under way


Courage Campaign Chair Rick Jacobs, outside the Federal Courthouse in San Francisco Monday morning, holds a box containing 140,671 signatures to the court asking that the proceedings in the federal suit against Proposition 8 be broadcast on YouTube. Photo: Rick Gerharter
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The federal trial to determine Proposition 8's constitutionality got under way Monday morning, January 11, in San Francisco, and U.S. District Court Judge Vaughn Walker wasted no time in peppering attorneys with questions.

Less than a minute into the opening statement from attorney Theodore Olson, who is representing two same-sex couples in the case, Walker interrupted him to ask if the right to marriage equals the right to have a marriage license from the state.

"I think that would apply," Olson answered.

Walker immediately asked why.

Olson said that it seemed to him that if there is a right to marry in the Constitution, that would apply to marriage licenses as well.

That led to the judge asking if the state could get out of the marriage business.

"Yes it could," Olson responded, adding that the possibility was remote.

The key arguments Olson plans to show through evidence are that denying gays and lesbians the right to marry causes "grievous harm," and that Prop 8, the same-sex marriage ban, perpetuates irreparable and discriminatory harm for no good reason.

"It will not damage relationships of opposite-sex couples, and it will not change the institution of marriage," Olson told the court.

Walker, who is hearing the case without a jury, announced at the outset that his decision to post the hearing on YouTube was stayed Monday morning by U.S. Supreme Court Justice Anthony Kennedy. That action also resulted in the trial proceedings being unavailable for viewing at several federal courthouses in California and elsewhere, leaving people to follow the action from people at the San Francisco courthouse via Twitter and live blogging.

Walker said that the proceedings are being recorded and that depending what happens Wednesday at the Supreme Court, those could be posted online or to the court's Web site.

The judge also said at the outset that he received 138,574 comments about transmission of the trial, and that of those, 138,542 were in favor, while 32 were opposed.

"I think the returns are clear," Walker said, referring to the overwhelming demand for online access to the trial.

The judge said that concerns by the anti-marriage side that their witnesses would be harassed should be considered.

"But in this day and age with the technology available and the public's right to access judicial proceedings, it's very important that we in the judiciary work to do that with the technical means available," Walker said.

Four classifications

During his opening statement, Olson said that the passage of Prop 8 created four classifications of couples in California: heterosexual married couples; the 18,000 same-sex couples who married from June 16 to November 4, 2008 (if those couples divorce or one spouse dies, they cannot remarry); those same-sex couples who married someplace else before November 4, 2008; and the plaintiff couples Olson and co-counsel David Boies represent today who are prohibited from marrying.

"At the end of the day there is no rational basis for this classification," Olson said.

For his part, Charles Cooper, who is representing the Yes on 8 side, argued in his opening statement that Prop 8 didn't change anyone's rights, it upheld traditional marriage.

Cooper began his statement at 10:23 a.m., and it wasn't until five minutes later, at 10:28, that Walker interrupted him with his first question.

Cooper's main argument is that marriage is a pro-child-creating institution, meant to meet the child's needs. Marriage, he said, is "always meant to channel men to women into relationships for the purpose of creation of children."

He also said that it should not be up to the court, but should be up to the political process to decide to experiment with same-sex marriage.

"Our legal position is the 14th Amendment does not take this issue out of the hands of the American people and the democratic process," Cooper said.

One plaintiff couple in the case – Jeff Zarrillo and Paul Katami – were the first to testify Monday morning. The defense decided not to cross-examine Zarrillo.

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