By LISA LEFF
San Francisco — Lawyers arguing a landmark federal case involving California’s same-sex marriage ban made their final arguments Wednesday, with supporters describing matrimony as an institution intended to promote childbearing and opponents saying the U.S. Supreme Court had recognized it as a fundamental right.
Former U.S. Solicitor General Theodore Olson delivered the closing argument for the two same-sex couples who sued to overturn voter-approved Proposition 8, claiming it violated their civil rights under the U.S. Constitution.
He told Chief U.S. Judge Vaughn Walker that tradition or fears of harm to heterosexual unions were legally insufficient grounds to discriminate against gay couples.
“‘We have always done it that way’ is a corollary to ‘Because I say so.’ It’s not a reason,” Olson said at the start of the five-hour hearing. “You can’t have constitutional discrimination in public schools because you have always done it that way.”
Former U.S. Justice Department lawyer Charles Cooper, who represents religious and conservative groups that sponsored the 2008 ballot measure, countered that cultures around the world, previous courts and Congress all accepted the “common sense belief that children do best when they are raised by their own mother and father.”
“The plaintiffs say there is no way to understand why anyone would support Proposition 8, would support the traditional definition of marriage, except through some irrational or dark motivation,” Cooper said. “That is not just a slur on the 7 million Californians who supported Proposition 8. It’s a slur on 70 of 108 judges who have upheld as rational the decision of voters and legislatures to preserve the traditional definition of marriage.”
Walker is being asked to strike down the measure that banned same-sex marriages in California five months after the state’s highest court legalized the practice and after an estimated 18,000 couples from around the nation had tied the knot.
The judge heard 12 days of testimony in January, but closing arguments were delayed until Wednesday to give Walker time to review the evidence and because of a skirmish between lawyers about putting additional material from the 2008 campaign into the trial record.
Walker did not indicate when he might make his ruling in the trial, the first in federal court to examine if states can prohibit gays from getting married. Whatever the judge does will be almost surely be reviewed by the 9th U.S. Circuit Court of Appeals and could land before the Supreme Court.
Olson invoked the high court often during his closing argument, stressing that it has afforded prisoners serving life sentences and child support scofflaws the right to marry and refused to make procreation a precondition of marriage, as evidenced by laws allowing divorces and contraception.
“It is the right of individuals, not an indulgence to be dispensed by the state,” Olson said. “The right to marry, to choose to marry, has never been tied to procreation.”
Judge Walker pressed Olson on that point, noting Proposition 8 supporters have gone to some lengths to argue that gays and lesbians only can have children with help from a third party, unlike opposite-sex couples.
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