Prop. 8 Backers Target 18,000 Same-Sex Marriages

By Bob Egelko, San Francisco Chronicle
06/16/10

SAN FRANCISCO As the trial over California's prohibition on same-sex marriage enters its final stage today, the ban's sponsors are urging the judge to go a step further and revoke state recognition of the marriages of 18,000 gay and lesbian couples who wed before voters passed Proposition 8.

Such an order would honor "the expressed will of the people," backers of the November 2008 ballot measure said Tuesday in their final written filing before Chief U.S. District Judge Vaughn Walker.

Andrew Pugno, an attorney for Prop. 8's backers, said in an interview that the sponsors aren't asking Walker to nullify the 18,000 marriages, but only to rule that government agencies, courts and businesses no longer have to recognize the couples as married.

Lawyers for two same-sex couples who sued to overturn Prop. 8, on the other hand, are asking Walker to lift the marriage ban permanently. The measure violates the constitutional guarantee of equality, they argued, and must be struck down "regardless of its level of public support."

Walker heard 12 days of testimony in his San Francisco courtroom in January in the nation's first federal court trial on the constitutionality of a law defining marriage as a male-female union. Among those who took the stand were the plaintiff couples - two women from Berkeley and two men from Burbank - and a parade of academic witnesses who testified about the history and meaning of marriage and the status of gays and lesbians in society.

The judge has scheduled closing arguments to last all day today. His ruling, which could be weeks away, will be the first round in a battle likely to reach the U.S. Supreme Court within two years.

Walker sent both sides a list of questions to be addressed in the arguments and let them respond initially in writing. In their answers Tuesday, Prop. 8's sponsors argued that the state has numerous legitimate reasons to define marriage traditionally - to guard children's welfare, maintain social stability, and honor voters' moral and religious views.

"Moral disapproval of homosexual conduct is not tantamount to animus, bigotry or discrimination," said Charles Cooper, lawyer for Protect Marriage, the Prop. 8 campaign organization. "On the contrary, religions that condemn homosexual conduct also teach love of gays and lesbians."

Theodore Olson, lead attorney for the couples challenging Prop. 8, called the measure "an attempt to enforce private moral beliefs about a disfavored minority." He said the Yes on 8 campaign, supported by the Roman Catholic and Mormon churches, had told voters that same-sex relationships are immoral and had exploited fears that gays menace children.

Walker also asked both sides what he should do if he found Prop. 8 unconstitutional. Its sponsors replied that the only potential legal flaws in the measure were supplied by the California Supreme Court and could be removed by interpreting the measure more broadly.

The state court ruled in May 2008 that gays and lesbians had the right to marry the partner of their choice. After Prop. 8 overturned that ruling six months later, the California court upheld the measure while also affirming the legality of 18,000 same-sex marriages performed before the election.

Gay rights advocates argued that the unequal treatment of couples who married at different times was one of many reasons to overturn the ballot measure. But Cooper said Tuesday there was a better way to treat both groups of couples equally while respecting the people's will - "sustaining Proposition 8 by giving it retrospective effect," that is, deny state recognition to the pre-election marriages.