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Bay Area watches as Proposition 8 case begins in federal court

on January 12, 2010

“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

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?’”



  1. […] trial began in January in the U.S. District Court and lasted twelve days. During the trial, lawyers for each side laid out […]

  2. […] trial began in January in the U.S. District Court and lasted twelve days. During the trial, lawyers for each side laid out […]

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