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Prop. 8 trial begins in California
Section One
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Prop. 8 trial begins in California

by Ryan Burr - Special to the SGN

Since California Attorney General Jerry Brown has stated publicly that he finds Proposition 8 unconstitutional, how was it allowed to proceed to the ballot in November 2008?

This was one of the more pointed questions Chief U.S. District Judge Vaughn Walker raised during the first day's trial involving two same-sex couples suing the state in federal court on the grounds the Prop 8 violates their U.S. constitutional rights of equal protection and due process.

Seattle Gay News was present in San Francisco for the first two days' proceedings, which began January 11 and may never be seen by the public. Walker had ordered delayed release of the trial via YouTube and live broadcasting at numerous other federal courthouses, including Seattle's. U.S. Supreme Court Justice Anthony Kennedy, however, issued a temporary stay of that order, and on January 13 the full court, ruling 5-4, issued a permanent stay of any live broadcast to remote locations.

INSIDE COURTROOM 6
Courtroom No. 6 on the 17th floor of San Francisco's federal courthouse is quite small. On the first day of the trial, only 15 seats were open to the public as considerable space had been reserved for the plaintiffs' families.

After opening arguments by the high-profile attorneys - Ted Olson and David Boies for the plaintiffs and Charles Cooper for the defense - the two same-sex couples took the stand, describing their lives and, particularly, the inferiority they feel in being unable to wed. The male couple, Paul Katami and Jeff Zarillo of Burbank, are registered domestic partners in California, but they testified that it fails to fulfill all rights enjoyed by married persons. Plus, Frank said, "It's demoralizing and humiliating" for their relationship to bear an alternative name.

The defense only cross-examined the male couple in the case. The hot topic at that point, and through much of the first few days of the trial, centered on the "protect the children" aspect of the Yes on 8 campaign. Cooper, who showed taped testimony from two Massachusetts parents who said their child was taught about two princes marrying each other after the state legalized same-sex marriage, asked Katami if he thought sex education should be taught to second-graders if illustrating different marital relations was also acceptable.

Katami only replied that "children are growing up faster than they used to," and that he would have to see details on how a school was preparing to teach sex education before declaring his personal opinion. He also insisted that, regardless of what is taught in schools, parents have the freedom and a greater responsibility to influence their children's thoughts and behavior.

MEET THE PLAINTIFFS
Kristin Perry is the title name in the lawsuit, Perry v. Schwarzenegger. She and her partner, Sandra Stier, who reside in Berkeley, had a longer history to explain on the stand. Sandra was married to a man previously. But she and Perry now have four boys. They were married in 2004, when the City of San Francisco briefly issued marriage licenses to same-sex couples, but then had to void them after the California Supreme Court intervened.

"I'd feel more secure and more protective of my children if I were allowed to marry," Stier said.

The plaintiffs are very youthful, especially Katami and Zarillo, who are in their mid-30s. Perry is 45, Stier is 47. And they appear tightly bonded as friends, not just joint plaintiffs. Katami and Zarillo embraced and kissed the ladies after they each testified and returned to their seats next to them.

Judge Walker is an inquisitive man, and known for being unpredictable and an independent thinker. Some of his questions may have been rhetorical, as they didn't always receive clear answers. He asked Olson, for instance, if state action or society was to blame for the alleged inferior status of domestic partnerships. And could the federal Defense of Marriage Act be constitutional, yet Prop 8 not be?

To the plaintiffs, he solicited their thoughts on relegating every couple's relationship to something "other than marriage." After contemplating a moment, the plaintiffs agreed that would probably be acceptable, since then everyone would be on the same ground.

When Cooper, as some politicians have done recently, pointed out that President Obama is not supportive of same-sex marriage, Walker couldn't resist stating that, if the president's parents were living in Virginia at the time he was born, they would not have been permitted to marry due to an interracial marriage ban that remained on the books and enforced until the late 1960s.

"Doesn't that indicate there's been quite a change in our understanding of what people are entitled to marry?" he asked. "Couldn't an argument be made that there's been a similar evolution with respect to same-sex marriage?"

CASE BUILDS AGAINST PROP 8
The City of San Francisco was allowed to intervene in this case to show that it and the county have suffered economically as a result of Prop 8's passage. San Francisco 's Chief Deputy City Attorney Therese Stewart claimed that allowing same-sex marriage licensing would create a $35 million surplus for the city.

Expert testimony began late in the first day, with Harvard history professor Nancy Cott sharing how drastically marriage has changed, which she learned while researching for a book on the history of marriage. Debunking Cooper's repeated worry that marriage always has been and must continue to be an entirely "pro-child institution," Cott said that procreation has never been the central purpose of marriage in the United States. She noted that George Washington, the father of the nation, was sterile. Procreation was one of the purposes of marriage, but the larger purpose was to create stable households, she said.

She predicted a more stable society if all groups of people are permitted to marry, harkening back to days when slaves, once emancipated, immediately began marrying in droves.

George Chauncey, a professor at Yale University who has studied gender and sexuality, was on the stand for several hours, describing the "widespread and acute" discrimination Gays and Lesbians have experienced in public and private life for the last 100-plus years. Examples included sodomy laws, entrapment by police and discrimination in public accommodations, employment, hate crimes, violence, and stereotypes.

Although these comments generally kept the audience stoic, there were plenty of moments of laughter from the courtroom. For instance, Chauncey said when police went to bars to search for homosexuals - who were not permitted in such establishments after the repeal of Prohibition in 1933 - police would look for "signs" that a Gay person was in their presence. One give-away: "two men talking about the opera."

Olson and Boies will try to show that Prop 8 was motivated by anti-Gay bias, in addition to the other constitutional claims.

Cooper, meanwhile, asserted in his opening remarks that same-sex marriage is "too novel a social experiment," and states like California are entitled to adopt a wait-and-see approach to the results such laws have elsewhere, like in The Netherlands. Cooper is trying to show that allowing same-sex marriage has a detrimental impact on opposite-sex marriage and society at large. He furnished numbers that showed The Netherlands has seen increased divorce and more non-married couples living together since same-sex couples were granted marriage rights.

THE TRIAL CONTINUES
"It Feels Better When You're Married" signs were numerous outside San Francisco's federal courtroom as the trial recessed for the day. A lone man with a "Yes On 8 Forever" sign could be seen in the area before those on both sides of the issue went home to prepare for court the next day.

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