A lawyer for supporters of California's gay marriage ban argued Wednesday in a landmark federal trial that opposite-sex marriage ensures children have the benefits of being raised by biological parents.
Attorney Charles Cooper delivered his closing argument as the case challenging the constitutionality of voter-approved Proposition 8 resumed.
Cooper said societies around the world have always seen marriage as a way to keep children from being born out of wedlock.
"The historical record leaves no doubt, your honor, none whatsoever, that the central purpose of marriage in all societies at virtually all times is to channel procreative relationships into stable relationships to ensure that offspring that result from those relationships are raised in those stable relationships," Cooper said.
Even as he tried to elaborate, Cooper's statement drew a series of challenges from Chief U.S. Judge Vaughn Walker, who is presiding over the lawsuit filed by two same-sex couples who claim the ban is a violation of their civil rights.
Walker asked if people get married to benefit their communities or themselves? Weren't similar arguments once used to keep interracial couples from marrying? And if procreation is so central to marriage, why doesn't the state refuse to sanction marriage by infertile couples or couples who choose to remain childless?
"It is Orwellian, but isn't that the logic that flows from the premise that marriage is about procreation?" Walker asked.
With respect to laws that banned interracial marriage, Cooper said, "those racist sentiments and policies had no foundation in the historical purpose of marriage, and in fact they were at war with it."
Earlier in the day, former U.S. Solicitor General Theodore Olson, who represents the plaintiffs, argued that supporters of the ban were trying to deprive same-sex couples of a relationship the U.S. Supreme Court has recognized as a fundamental right.
Olson said the U.S. Supreme Court has repeatedly recognized marriage as a fundamental right -- one afforded to prisoners serving life sentences and child support scofflaws -- while refusing 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 said opposite-sex couples can procreate without the benefit of a third party.
"That is a difference," Walker said. "And why is that difference not one the Legislature or voters could rationally take into account in setting the marriage laws in California?"
Olson answered that sponsors of the 2008 ballot measure could not cite tradition or speculation that allowing gays to wed would harm the institution of marriage as valid reasons to discriminate.
"'We have always done it that way' is a corollary to 'because I say so.' It's not a reason," Olson told the judge.
The judge asked whether he must find that Proposition 8 was unconstitutional if it was based on "discriminatory motive on the part of voters to impose some private morality through the initiative process?"
Olson said the law would be unconstitutional in that case.
"I'm willing to admit there are plenty of good people in California who voted for Proposition 8 because they are uncomfortable with gay people, and they are uncomfortable with the idea that gay people are just like us," he said.
But just as with laws that banned interracial marriage, "they are not permitted under the Constitution to put that view into the law, to put that view into the Constitution of their state to discriminate against other people," he said.
Walker is being asked to overturn the ballot measure that outlawed same-sex marriages five months after the California Supreme Court legalized it and after an estimated 18,000 couples from around the nation had tied the knot.
The judge heard 12 days of testimony in January and could hand down his decision to uphold or strike down the voter-approved ban in a matter of weeks.
Plaintiff Jeffrey Zarrillo is suing to overturn Proposition 8 with his partner, Paul Katami, and a lesbian couple from Berkeley, Kristin Perry and Sandy Stier.
Closing arguments were previously delayed to give Walker time to review the evidence and because of a skirmish between lawyers over evidence.
"The period of time from the presentation is not anything that I would have wished or hoped for," Walker said Wednesday. "But it may be appropriate that the case is coming to closing argument right now. June is after all the month for ... weddings."
The judge beamed as the remark was greeted with laughter.
Last week, the judge gave lawyers on both sides a list of 39 questions he expects them to address during the hearing.
Walker also heard from lawyers for the city of San Francisco, which joined the case to argue that denying gays the right to wed has negative economic consequences for local government.
"Government and taxpayers in part pay for the cost of that discrimination," Chief Deputy City Attorney Therese Stewart told Walker, citing lost wedding revenue and increased public health costs "created by stigma introduced by measures like Proposition 8."
The judge observed that gays and lesbians would continue to suffer the psychological pain of social bias even if courts invalidated Proposition 8.
Whatever Walker does likely will be reviewed by the 9th U.S. Circuit Court of Appeals and could well wind up before the Supreme Court.
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