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Prop 8 sparring begins in S.F. federal court

on January 11, 2010

Opening arguments began this morning in a federal court in San Francisco in the case of Perry v. Schwarzenegger, challenging the validity of California’s Proposition 8, the voter-approved constitutional amendment that denies same-sex couples the right to marry.  The three-week trial will be closely watched by gay rights groups and supporters of traditionally defined marriage nationwide, and attention at the court was so high Monday that a second room was set up to accommodate the overflow of spectators and reporters.

Testifying against Proposition 8, Jeffrey Zarrillo, 36, from San Francisco, said on the witness stand that marriage had a special meaning to him and his longtime partner. He said that he and his partner 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 said, his voice breaking, speaking of Paul Katami, his partner of nine years. “I want nothing more than to marry him.”

Calling marriage “the most important relation in life,” Theodore Olson, former solicitor general under the Bush Administration and a veteran of many Supreme Court arguments, declared in his opening statement this morning that Proposition 8 violated a central right to marry that was implicit in the U.S. constitution.

“Proposition 8 had a simple, straight forward purpose,”  Olson said, “To eliminate a right that some people had had to marry.”  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,” Olson 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.”

Attorney Charles Cooper, arguing for supporters of Proposition 8, stressed that while marriage has progressed away from racial and gender discrimination, the long-established tradition of heterosexual marriage in the United States and around the world permitted a ban on marriage by homosexuals. Cooper argued 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.”

U.S. District Court Judge Vaughn R. Walker, who is hearing the case without a jury, asked Cooper how same-sex rights would alter marriage as it has traditionally been defined. Cooper argued that permission for same-sex union 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,” Cooper said, “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.”

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