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Gay marriage on trial as landmark Prop 8 challenge opens in federal court

The trial over California’s ban on same-sex marriage opened Monday in San Francisco in a landmark case that could ultimately lead to a showdown in the U.S. Supreme Court.

In opening statements challenging the constitutionality of Proposition 8, the voter-approved ban on same-sex marriage, plaintiff’s attorneys said the case is “about marriage and equality” while the law’s defender said it “promoted procreation.”

Plantiffs (left to right) Paul Katami, Jeff Zarillo, Kris Perry and Sandy Stier before the start of their trial in San Francisco. Photo credit: Reuters

“The facts will show that the United States Supreme Court said marriage is a right that isn’t limited to people of opposite sex and that the relationship between individuals in marriage is valuable and withholding it doesn’t make sense,” said Theodore Olson, attorney for plaintiff’s Kristin Perry, Sandra Stier, Paul Katami and Jeffrey Zarrillo.

“Proposition 8 singled out gay men and lesbians as a class, swept away their right to marry, pronounced them unequal, and declared their relationships inferior and less-deserving of respect and dignity,” Olson told the court on Monday.

The plaintiffs in the case — two same-sex couples who were denied California marriage licenses after the upholding of Proposition 8 in November 2008 — are being represented by Olson and David Boies, once fierce opponents in the 2000 Supreme Court fight for the presidency between George W. Bush and Al Gore.

Under questioning from Olson and Boies, the four plaintiffs described their difficult roads to “coming out” and their quest to marry their partners.

“There’s something humiliating about everybody knowing you want to make that decision (to marry), and you don’t get to,” Perry told the court.

The non-jury trial before the U.S. District Court for the Northern District of California, is being presided over by Chief Judge Vaughn R. Walker, and is the first federal trial on the constitutionality of state bans on same-sex marriage.

The stakes are huge for both supporters and opponents of gay marriage.

Analysts say the decision to fight the case in federal courts represents a high-stakes risk because it could result in a U.S. Supreme Court ruling, which would settle the issue and seal the fate of gay unions across the United States, without possibility for appeal by one side or the other.

All [Proposition 8] does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples. It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

It is unconstitutional.

– Theodore Olson, concluding his opening statement.

Charles Cooper, attorney for the proponents of Proposition 8, said racial restrictions on marriage “are of an entirely different nature,” arguing that marriage as defined as between a man and a woman does not change the institution of marriage “but protects it and promotes procreation.”

When Walker asked if procreation is marriage’s sole purpose, Cooper responded with “it is central and the basis of marriage across cultures and societies throughout history. It is a pro-child institution.”

Olson said his expert witnesses — professors, psychologists, historians and sociologists “who have studied marriage” — will show that the banning of same-sex marriage is akin to past restrictions on marriage, including “restrictions on race and the inequality of women.”

The trial is expected to last about two weeks.

Earlier today, the U.S. Supreme Court halted plans to show video of the trial on the Internet, though it will consider the case more fully by Wednesday, when its stay ends. Walker agreed on Monday to allow video recording to continue in the meantime, in case the top court relents.

For legal eagles, attached is a copy of the complaint Perry v. Schwarzenegger, and full text of Olson’s opening statement here.

Olson delivers opening remarks in Prop 8 legal challenge

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