Scholars, gay and lesbian partners, and opponents of same-sex marriage are expected to testify about the nature of marriage and homosexuality itself during an unprecedented federal trial today to determine whether gays and lesbians may marry.
The case, Perry v. Schwarzenegger, is expected to become a landmark that eventually will be decided by the U.S. Supreme Court. Both sides have hired leading legal advocates with lots of experience before the high court.
San Francisco's U.S. District Court Judge Vaughn R. Walker, a Republican appointee known for independence, will decide whether Proposition 8's ban on same-sex marriage violates U.S. constitutional rights of equal protection and due process. Walker's pretrial rulings have tended to favor supporters of same-sex marriage. Unlike other court cases about marriage rights, the trial before Walker will involve weeks of testimony from witnesses on wide-ranging issues.
"Actually putting witnesses on the stand has never been done before in any lawsuit claiming a right to same-sex marriage," said Proposition 8 campaign attorney Andy Pugno. "So this is a very out-of-the-ordinary approach."
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David Boies, a lawyer for the challengers of the ballot measure, said he expected the case would reach the Supreme Court in the fall of 2011.
"This is the first time that you will have this kind of record being made" on the social, religious and legal implications of same-sex marriage, said Boies, who represented former Vice President Al Gore in Bush v. Gore, the Supreme Court case that gave George W. Bush the presidency.
Theodore B. Olson, who represented Bush in that case, is working with Boies to overturn Proposition 8. They were hired by a nonprofit created by a political strategist and entertainment industry activists to bring the challenge.
Challengers of the marriage ban will call to the stand the two same-sex couples who filed the suit and nearly 10 experts who will testify about the history of discrimination against gays and the history of marriage. They also intend to call some of the architects of the Proposition 8 campaign.
The Proposition 8 campaign intends to call a handful of expert witnesses who also will testify about the history of marriage and who will contend that traditional marriage benefits children.
Witnesses for the same-sex couples who filed the lawsuit are expected to testify that sexual orientation is highly resistant to change, that same-sex marriage does not harm anyone, and that children of same-sex couples are as well adjusted as those born to heterosexual couples.
The challengers' attorneys also intend to argue that the Proposition 8 campaign was motivated by prejudice against gays, that gays and lesbians should receive the highest form of constitutional protection.
Pugno said Proposition 8's defenders would show "that traditional marriage is rationally related to the public interest in natural child rearing and that voters could reasonably decide to continue the traditional definition and that does not violate the Constitution."
Pugno called the case "very complex," and said the campaign's strategy would develop in reaction to what the opponents of the ballot measure present in court during the next several days.
"They are going to be trying to impugn the motives of the sponsors and trying to prove characteristics of sexual orientation" are similar to those of race, which receives the highest constitutional protection in the courts, Pugno said.
Opponents of same-sex marriage also frame the case as a challenge to the people's right to make law. In every one of the 31 state ballots where the issue has appeared, including Kansas, voters have defeated it. In the five states that permit such unions, the change came by legislation or court decision.