SAN FRANCISCO — The lead attorney defending Proposition 8 on the final day of a historic federal trial Wednesday said that gays have been subjected to a "shameful history" of discrimination but that voters had a right to limit them from marriage.
Voters, argued attorney Charles Cooper, had legitimate concerns about what the consequences of same-sex marriage might be for society and children, even if critics of gay marriage can't prove that allowing gay couples to marry has a negative impact.
U.S. District Judge Vaughn Walker took final arguments Wednesday in the case brought by opponents to the 2008 initiative. No date has been set for his decision.
Theodore Olson, who gave closing arguments on behalf of two gay couples challenging the ban as unconstitutional, said the defense failed to show a good reason to let voters use the state constitution to bar gay people from a fundamental right such as marriage.
Walker peppered both sides with questions during the daylong hearing.
Cooper reiterated the defense argument that governments have a historical interest in "channeling" procreation into marriage so children can have the "optimal" benefit of having a mother and father as "role models."
He quoted from a writer who expressed concern that gay marriage would "cut the link between sex and diapers," and told Walker: "It is not possible to predict with certainty and confidence what that change will beget."
Olson lashed out at Cooper's arguments, saying that Cooper, under questioning by the judge last January early in the trial, said "I don't know" and "we don't have any evidence" when he was asked what harm might come from gay marriage.
"You can't come in here and say, 'I don't have to prove anything,' " Olson said.
Proposition 8, which voters approved in November 2008, changes the state constitution to declare that marriage in California is only between a man and woman. The measure was put on the ballot after the California Supreme Court ruled in May 2008 that it was unconstitutional to bar gays from marrying. Thousands then decided to wed before Proposition 8 passed.
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