As Theodore Olson, the attorney for the same-sex couples who sued the state of California for the right to marry, concluded his final remarks in the historic trial, people watching in the San Francisco courthouse’s overflow room stood up and cheered. Wednesday was the last day in the Perry v. Schwarzenegger case, and Olson used his final moments before Chief Judge Vaughn R. Walker to argue that Proposition 8, the 2008 California ballot initiative that prohibited same-sex marriage, was discriminatory.

The California Supreme Court legalized same-sex marriage in May 2008, and in the six months that followed 18,000 same-sex couples got married in California. That November, voters approved Proposition 8, which added a new provision to the California State Constitution reading “only marriage between a man and a woman is valid or recognized in California.” The following day, once this provision was added to the constitution, a ban against gay marriage went into effect.

Campaign poster from the November 2008 ballot initiative.

Shortly after the election, two same-sex couples filed Perry v. Schwarzenegger arguing that Proposition 8 violates their rights to equal protection under the state constitution. Proposition 8’s supporters, specifically the group Protect Marriage, argue that marriage should be exclusively defined as a union between a woman and a man.

Wednesday’s closing arguments have been long awaited, especially in the Bay Area, which has one of the largest populations of gay and lesbian residents in the United States. Heavily covered by the media and closely watched by gay rights groups and supporters of traditionally defined marriage, this trial is considered groundbreaking because it could set precedent in deciding how gay men and lesbians are treated under the law.

The trial began in January in the U.S. District Court and lasted twelve days. During the trial, lawyers for each side laid out a case as to why or why not Proposition 8 was a legal amendment to California’s constitution. The plaintiffs argued that Proposition 8 was not valid under the constitution because it was discriminatory, while the defense emphasized its belief that allowing gays and lesbians to marry would harm the institution of marriage. Judge Walker then gave a list of questions to the attorneys from both sides to answer in preparation for the closing arguments.

On Wednesday, as the closing arguments began, the entrance of the court building was empty. The crowds of protesters that had thronged outside the court during the trial were gone and just a few press members with cameras were set up. But inside the courtroom it was packed. Not only was the main courtroom full, but the overflow room as well. By noon, the court had set up a second overflow room.

“Well, this is an impressive array of legal talent,” said Judge Walker as he welcomed the attorneys to the court. “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.”

Olson, a tall man with thick sandy-colored hair, was the first to take the stand, and in a resolute one and a half hour speech argued that Proposition 8 is unconstitutional because it discriminates against a class of people.  “The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly situated Californians,” Olson began. “Their state has rewritten its constitution in order to place them in a special disfavored category where their most intimate personal relationships are not valid, not recognized and second-rate. The state has stigmatized them as unworthy of marriage, different and less respected.”

He asked permission to play video clips of January’s trial testimony, saying that he could not make a more compelling argument than showing what the plaintiffs and their witnesses had said. One clip showed one of the four plaintiffs, Jeffrey Zarrillo, speaking about his partner while choking back tears. “I love him more than I love myself. I would do anything for him. I want nothing more than to marry him,” Zarrillo said.

Olson also played the testimony of a few academic witnesses who testified during the trial. One witness, Nancy Cott, an American history scholar, described the history of marriage and spoke about how important marriage has been to humans over time, saying, “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means.”

Proposition 8 supporter. Photo by santacruztacean via Flickr Creative Commons.

When defense attorney Charles Cooper, a slender man with a slight southern accent and white hair parted down the middle, next took the stand, he immediately focused on the belief that marriage should be defined as a union between a man and a woman. “The marital relationship is fundamental to the existence and survival of the race,” he said. Same sex marriage “represents a threat to society’s interest,” he said, and asserted that ultimately marriage should be about procreation—and, inherently, same-sex couples cannot procreate.

Procreation and the value of raising children in a home with both a mother and father were the central themes of Cooper’s argument. “To whatever extent children are born into the world without this stable, enduring marital union, raised and responsibility taken for the offspring by both of the parents that brought them into the world,” he said, “then a host of very important and very negative social implications arise and potential social consequences arise.”

This confused the judge, who asked, “But the state doesn’t withhold marriage from people who cannot make children of their own. Are you suggesting it should?” Cooper said that he was not suggesting this notion, but also didn’t give a definitive answer as to why same-sex couples should be treated differently.

Once Cooper had finished his two-hour and fifteen-minute closing argument, Olson was given 45 minutes for a rebuttal. During this time, Olson brought up the trial testimony of one of Cooper’s January witnesses, David Blankenhorn, the president of the Institute for American Values, an organization that studies marriage and family life. Olson pointed out that during the trial, in a strange twist, Blankenhorn agreed with some of the facts Olson presented under cross-examination, including the idea that heterosexual couples can harm the institution of marriage.

“I meant to say, for our purposes, heterosexuals did the deinstitutionalizing,” Blankenhorn had said during the January trial, referring to the fact that straight couples have already undermined marriage as an institution by divorcing or having children out of wedlock. “Deinstitutionalization didn’t just crop up when we started talking about giving same sex couples marriage rights. It started long before that.”

To a standing ovation in the overflow room, on Wednesday Olson finished his rebuttal by quoting Blankenhorn, concluding that taking away the constitutional right to privacy and freedom to marry “is not acceptable under our Constitution. And Mr. Blankenhorn is absolutely right—the day that we end that, we will be more American.”

Judge Walker’s ruling on the constitutionality of Proposition 8 is expected within the next month. Attorneys on both sides have said that if they lose, they will appeal to the next court, the Ninth U.S. Circuit Court of Appeals in San Francisco, and will fight this case to the U.S. Supreme Court if need be.

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“What is it that is so special about that word, that institution of marriage?”

Theodore B. Olson, a prominent conservative litigator and a veteran of many Supreme Court arguments for the Bush Administration, went right to the point when questioning his client in a tense federal courtroom yesterday.

“Marriage is about making a public commitment to the world, to my partner, to our friends and family,” said Sandra Stier, 47, of Berkeley. “It’s the way we tell them and each other that this is a lifetime commitment. We can tell them, ‘We are married; she is my spouse.’”

The opening day of testimony in Perry v. Schwarzenegger featured vivid personal testimony from Stier and her partner, Kristin Perry, 46, chronicling their self-identification as lesbians and daily struggles with discrimination based on sexual orientation. Their testimony on the public and private role of married life, along with testimony from a male couple from Los Angeles, was an emotional beginning to the first challenge to a state’s same-sex marriage ban in federal court.

The three-week trial challenging California’s Proposition 8, the voter-approved constitutional amendment denying same-sex couples the right to marry, will be closely watched by gay rights groups and supporters of traditionally defined marriage nationwide. More than a hundred opponents of Proposition 8 gathered outside the courthouse Monday morning to voice their support for the challenge.

“There has been a large movement and we’ve made great strides, but we are still in the same place in many ways,” said Kate Baldridge, standing with her partner Elizabeth Chase outside the Philip Burton Federal Court Building. “I see this as a way for the government to protect minority rights.”

Just before the start of the trial, the U.S. Supreme Court issued a temporary stay blocking the trial’s broadcast on YouTube. The high court is expected to rule on the internet broadcast on Wednesday. Interest in the case was so high that the court opened a second room to accommodate the overflow of spectators and reporters.

Judge Vaughn R. Walker, who is hearing the case in U.S. District Court without a jury, listened as the lawyers for the plaintiffs sketched the struggle in human terms, asking their clients to describe what it means to be a homosexual and how they live in committed relationships while being denied the right to marry.

Olson’s co-lead attorney, David Boies, a prominent litigator who argued against Olson before the Supreme Court in the 2000 Bush v. Gore case, posed pointed questions about the nature of sexual self-identity, asking his clients how long they had been gay.

“As long as I can remember,” replied Paul Katami, 37, a manager at a Southern California exercise club. He described his coming out process as a gradual opening up to trusted family and friends.

“I never wanted to sit someone down and present this serious problem,” Katami said. “I always told myself that I would come out in a way that would be exemplary to who I was.”

Jeffrey Zarrillo, 36, Katami’s partner of nine years, also testified against Proposition 8. Zarillo said marriage had a special meaning for him, and that he and Katami had no other desire than to sanctify their relationship in the eyes of the state and bring about the legal stability to raise a family.

“Marriage indicates to strangers that these individuals are serious,” Zarillo said. “[That] these people are committed to each other; that they have taken that step that one hopes will last the rest of their lives.”

“I love him more than I love myself. I would do anything for him.” Zarillo added, his voice breaking. “I want nothing more than to marry him.”

Fifty-three percent of Californians voted in November 2008 to deny Zarillo that right, but Governor Arnold Schwarzenegger and Attorney General Jerry Brown have declined to defend Proposition 8 in federal court. In the state’s absence, several organizations devoted to the protection of traditional marriage have organized forces to defend the constitutional ban.

Attorney Charles J. Cooper, arguing in support of Proposition 8 for the group Protect Marriage, stressed that a redefinition of marriage by the courts would weaken what he argued was the central societal purpose of marriage: “To channel the naturally procreative sexual activity of men and women into stable unions.”

Judge Walker asked Cooper how same-sex rights would alter marriage as it has been traditionally defined. Cooper argued that permission for same-sex unions would move the intent of marriage away from primarily procreation toward a private relationship designed simply to provide adult couples with “personal fulfillment.”

“If the institution is ‘de-institutionalized,’ as the scholars say, as is gradually happening now, then it will very likely lead to very real social harms, such as lower marriage rates, and higher rates of divorce and non-marital cohabitation,” Cooper said.

Cooper also argued that Californians have been “generous” in providing the rights and benefits of domestic partnerships, which he said include “virtually all of the substantive legal protections” given to married couples.

“The evidence will show that California’s gay and lesbian community has substantial political power and that California is strongly supportive of gay and lesbian rights,” he said.

Frank and Joe Capley-Alfano listen to speeches during Monday's rally outside Federal Court

From the start, the legal team opposing Proposition 8 sought to cast doubt on the sufficiency of domestic partnerships as a substitute for marriage. Calling marriage “the most important relation in life,” Olson declared in his opening statement that Proposition 8 violated a central right to marry that was implicit in the U.S. constitution.

Olson argued that the evolution of marriage to accommodate same-sex couples will not harm, but rather will “fulfill” the institution. “The history of marriage has evolved,” he said. “It has changed to shed irrational, unwarranted and discriminatory limitations that reflected the biases and prejudices of the past. Those changes have not harmed the institution of marriage.”

In answering questions from Judge Walker on the use of the term “domestic partnership,” Stier said the legal arrangement did not reflect their relationship in an accurate way.

“We have a loving, committed relationship,” she said. “We are not business partners, nor social partners, nor roommates.”

Stier said being able to say she and Perry are married would provide her with more of a sense of inclusion in society.

“It would make me feel our relationship is more respected,” she said. “It would prevent me from feeling our family isn’t good enough.”

Judge Walker asked Protect Marriage attorney’s Cooper how California had been able to accommodate the eventual elimination of restrictions on blacks marrying whites, yet could not accept the same for two people of the same sex.

Racial restrictions were never a “definitional” feature of the institution of marriage, Cooper said, and as a product of white supremacist doctrine were therefore unconstitutional.

“The limitation of marriage to a man and a woman is something that has been universal,” Cooper said. “It has been across history, across customs, across society. The loathsome restrictions based on race are of an entirely different nature.”

As the day progressed, the plaintiffs’ lawyers called to the stand Nancy F. Cott, a Harvard historian who specializes in the history of marriage in America. Attorney Theodore Boutros sought Cott’s opinion on Cooper’s statements about the universality of heterosexual marriage.

“It’s inaccurate, based on my understanding of the history of marriage,” Cott said.

Cott’s testimony, which will continue Tuesday, explored the competing private and public interests in controlling the basic ability to say, “I do.”

“Most people tend not to realize that, in marrying, one is exercising a right of freedom,” Cott said. “They think of it as a private choice and tend not to articulate the civil right aspect of it. It is only for those who cannot marry at all that the right to marry becomes an expression of one’s right to choose.”

At a press conference after proceedings adjourned, Andy Pugno, general counsel for Protect Marriage, characterized the ultimate question in the case as which group in American politics gets to define the nature of marriage for the rest of society.

“We believe that when it comes to a social institution that permeates our culture and our government, ultimately the people, through their government, should have the final say about what marriage means,” Pugno said.

In his remarks during the press conference, Olson reiterated the argument that same-sex unions are part of the gradual evolution of the institution of marriage. He cited the Supreme Court’s 1967 decision in Loving v. Virginia, which declared prohibitions against interracial marriage unconstitutional, as a hopeful example for the outcome of this case.

“Forty years ago, the Supreme Court of the U.S. struck down the Virginia statue which prohibited interracial marriages,” Olson said. “Today, people can’t imagine that that time ever existed. We believe that forty years from now, or hopefully sooner than that, people will look back and say, ‘What were they thinking?’”

Live updates of Perry v. Schwarzenegger available at firedoglake.com.