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Prop 8 trial defense raises questions about nurturing children

The federal trial over Proposition 8's constitutionality ended its witness testimony in San Francisco last week with just two witnesses for the defense and one simple claim.

The defense argued that even if Proposition 8 harms gays and lesbians and any children they may have, voters had a right to exclude gays from marriage because of concerns that children are best raised by their biological mothers and fathers.

It's a claim that lawyers for two same-sex couples challenging the ballot measure called irrational, and no good reason for denying gays a basic right. It's also a line of defense against gay marriage that faltered 14 years ago when a judge in Hawaii ruled that the state of Hawaii had failed to make a "compelling case" that child welfare and society would be harmed by same-sex marriage.

Gays didn't go on to marry in Hawaii after its 1996 decision. Hawaii Circuit Judge Kevin S.C. Chang stayed his own ruling pending appeals. Voters in Hawaii in 1998 approved a constitutional amendment against gay marriage.

But in his court, Chang heard much more witness testimony favoring the child-based argument against same-sex marriage than Proposition 8 attorneys put on this week.

The federal trial over Proposition 8, which declares marriage in California only to be between a man and a woman, will close, perhaps in March, after final arguments from both sides. Gay couples are arguing that the amendment to the state constitution violates their right to equal protection.

Defense lawyers said they ultimately called so few witnesses because some withdrew out of fear that the proceedings would be televised. But they said they felt the two witnesses they did call made their case that voters have reason to believe same-sex marriage could undermine the traditional family unit.

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