A FEDERAL court case being heard in San Francisco for the remainder of this month may eventually determine whether gays and lesbians obtain the right to marry throughout the US. At present, five US states permit same-sex marriage, while 30 state constitutions ban it.
In the case being heard by Chief Judge Vaughn Walker, two couples, Kristin Perry and Sandra Stier, and Jeff Zarrillo and Paul Katami, are suing the state of California for the right to marry. The state supreme court legalised same-sex marriage in May 2008, but that ruling was overturned by Proposition 8 in a referendum that passed with 52 per cent of the vote the following November.
Proposition 8 added a clause to the state constitution which says: “only marriage between a man and a woman is valid or recognised in California”. Regardless of the outcome of this trial, the case is likely to be appealed all the way to the Supreme Court.
Charles Cooper, the lawyer for supporters of Proposition 8, argues that “the will of the people” must be respected and pleads for “special regard” for the “venerable institution” of traditional marriage.
Lawyers for the plaintiffs say the right to marry is a basic civil right, and that denying it to gays and lesbians constitutes discrimination.
“I think this is the most important civil rights issue in the country now,” David Boies, one of two well known lawyers hired by the plaintiffs, told Newsweek.
“There has been enormous progress in women’s rights, and for ethnic minorities. The major group now singled out for discrimination are gays and lesbians.”
Mr Boies is a liberal who defended Al Gore against George W Bush in the 2000 Supreme Court battle over the results of the presidential election. His opponent in that case, the conservative lawyer Ted Olson, has teamed up with Mr Boies to defend the right to same-sex marriage.
The lawyers say they took the case because they want to represent four people who wish to marry because they love each other, and because they believe the state-by-state approach to the legalisation issue is a mistake.
The opening session was unusual for the emotion and humour displayed on the witness stand. Kristin Perry – for whom the Perry vs Schwarzenegger case is named – told how she fell in love with Sandra Stier, “the sparkliest person I’d ever met”. Ms Perry said she dated boys in high school because she wanted to go to the prom, but always knew she was a lesbian. When Mr Olson asked whether she could change her sexuality, Ms Perry replied, “I’m 45 years old. I don’t think so.”
Jeff Zarrillo was first to the stand. “He is the love of my life,” Mr Zarillo said of Paul Katami, his partner of nearly nine years. “We are Americans who simply want to get married just like everyone else. We believe in our constitution and that the courts will lead the way to equality like they have so many times in the past.”
The case is also testing precedent on broadcasting from courtrooms. In view of public interest, and because there is no jury or criminal accused whose right to a fair trial must be protected, Judge Walker decided to allow the proceedings to be streamed live to several federal courthouses around the country, then shown on YouTube at the end of each day.
But supporters of Proposition 8 appealed to the US Supreme Court on the grounds that witnesses opposed to same-sex marriage risked being exposed to “harassment, economic reprisal, threat and even physical violence”. The defendants claimed some witnesses said they would drop out if the trial were broadcast.
The Supreme Court suspended the broadcasts while it studies the issue, and will hand down its decision this afternoon.