Calif. court hears closing arguments in freedom to marry case
June 16, 2010
Posted by Robert Barnes on washingtonpost.com:
"A lawyer representing two same-sex couples who seek recognition of a constitutional right to marry compared the fight to the great civil rights struggles of the 20th century, as a federal judge Wednesday heard closing arguments in the trial over California's Proposition 8.
"Republican former U.S. solicitor general Theodore B. Olson said that regardless of California voters' motivation in amending their state's constitution to limit marriage to a man and a woman, such an inclusion violates federal guarantees of due process and equal protection.
"He said his clients seek no new definition of marriage, but simply access to marriage that the Supreme Court has held is a fundamental right.
"'Proposition 8 discriminates on the basis of sex the same as Virginia law discriminated on the basis of race,' Olson told Chief District Judge Vaughn R. Walker. He was referring to the law banning interracial marriage that the Supreme Court struck in 1967 in the landmark case Loving v. Virginia.
"Olson said the trial over which Walker presided in January will be seen as the same kind of record established in lower courts before the court ruled against racial segregation in public schools in Brown v. Board of Education.
"Olson told Walker that the Supreme Court has established marriage as a fundamental right in 14 cases since 1888, and said all people have the right to liberty, privacy, association, spirituality and autonomy.
"He said marriage is a 'right belonging to persons, not the state of California.'
... "The plaintiffs are Kris Perry and Sandy Steir, a lesbian couple with four children from Berkeley, and Paul Katami and Jeffrey Zarillo, longtime partners from Burbank. They are represented by Olson, who was the lawyer for George W. Bush in Bush v. Gore, and by Olson's Democratic rival in the case, David Boies.
"Whatever Walker's decision, which is expected in coming weeks, the case is headed for an appeals process -- first at the historically liberal U.S. Court of Appeals for the 9th Circuit in San Francisco -- that will likely end at the Supreme Court.
"The justices have never squarely confronted the issue of whether gays have a constitutionally protected right to marry.
... "Most legal experts think the trial went well for proponents of marriage equality but that it will be far harder for them in the appellate process, and especially at the Supreme Court.
... "'Excluding individuals of the same sex from the institution of marriage harms plaintiffs, their children, and hundreds of thousands of other gay men and lesbians (and their families) throughout California,' they wrote. 'Allowing gay men and lesbians to marry harms no one.'"
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