SAN FRANCISCO — A federal trial on California's Proposition 8 began Monday after the chief judge explained that the U.S. Supreme Court had blocked the delayed release of tapes of the trial until a definitive decision Wednesday afternoon from the high court.
The Ninth U.S. Circuit Court of Appeals had given Walker the OK to release the tapes in delayed fashion — posting on the court's Web site — as part of a new experiment in the circuit to allow some trials to be taped or broadcast.
Federal trials are rarely broadcast.
Chief Judge Vaughn Walker peppered attorneys with questions, with the defense of California's same-sex marriage ban arguing that the fundamental purpose of marriage is procreation, to raise children in an "intact" family and that same-sex marriage could erode that purpose.
"Same-sex marriage is simply too novel an experiment at this stage," argued Proposition 8 attorney Charles Cooper in U.S. District Court for Northern California in San Francisco.
Representing two gay couples challenging Proposition 8, attorney Ted Olson gave the first opening remarks.
Gay people have been classified as "degenerates" in the United States, Olson said, targeted by police, fired from employers. "Proposition 8 perpetuates that for no good reason," he said. He said it has the effect of inflicting "upon them badges of inferiority" and is a violation of constitutional rights.
Walker asked pointed questions about whether each side had evidence to prove their cases. Two plaintiffs, a gay couple from Los Angeles, took the stand, and the challengers began showing pro-Proposition 8 campaign videos and asking gay plaintiffs to describe how the campaign videos made them feel, especially the references to protecting children.
Counsel for the gay couples asked that the proceedings today and through Wednesday be taped to preserve them for broadcast on the web later — if the high court allows it — and Cooper objected, arguing that it would violate the "spirit" of the stay.
Walker didn't decide. But cameras were rolling, feeding into a spillover room for press and the public. He said the public was invited over the last week to weigh in on the new rule in general allowing some trials to be broadcast, and that many people had sent messages to the court specifically about the Proposition 8 trial.
He said 138,542 messages urged allowing broadcasting, while 32 were opposed, and "overwhelming" endorsement of the court's change in rules.
Walker was quick to start questioning Olson once the famed attorney began his presentation. Olson, a conservative who views gay marriage as a constitutional right, is famed for representing George W. Bush before the U.S. Supreme Court after the 2000 presidential election.
Olson said, "This case is about marriage and equality." He quoted from U.S. Supreme Court decisions referring to marriage as "one of the most vital personal rights" in the pursuit of happiness and "a basic right."
Walker interrupted him and asked him if that meant that a marriage license was necessary. He also asked if evidence will show that gay people "suffer" by being limited to domestic partnership.
Olson said the language that the Proposition 8 campaign used, describing marriage as "unique," bolsters his argument that by barring gays from marrying, the government has "isolated" gays and lesbians and said, "You are different."
Walker said that "moral disapproval" leading to a law is not a reason to declare it unconstitutional.
Olson replied that moral arguments were used to defend discrimination based on race and gender, and that marriage has "evolved" to discard biases and prejudices.
The parents of President Obama, he said, wouldn't have been allowed to marry in some states at the time they did. He said Walker's decision could have an impact on federal law — the Defense of Marriage Act — that could prevent same-sex marriage being sanctioned federally rather than state by state.
Olson said children and the argument that marriage is for procreation are not a "rationalization" for barring same-sex marriages.
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