The first federal trial to determine if the US Constitution prohibits states from outlawing same-sex marriage got under way yesterday, with the two gay couples on whose behalf the case was brought among the first witnesses.
The proceedings, which are expected to last two to three weeks, involve a challenge to Proposition 8, the gay marriage ban approved by California voters in November 2008.
Regardless of the outcome, the case is likely to be appealed to the US Supreme Court, where it ultimately could become a landmark that determines if gay Americans have the right to marry. Gay marriage is legal in only a handful of US states, though many other states recognise civil unions between same-sex couples.
A loss in the top court, two ranks above the action on Monday, would seriously undermine efforts to win gay marriage rights in state courts that have been a hallmark of the gay rights movement thus far.
The United States is divided on gay marriage. It is legal in only five states, though most of those, and the District of Columbia, approved it last year.
Approval of Prop 8 in November 2008 was a sweet victory for social conservatives in a state with a liberal, trend-setting reputation, and maintained the steady success they have scored on the issue at the ballot box. Where it is legal, gay marriage has been championed by courts and legislatures, not voters.
Gay rights lawyers in the case describe their battle as a continuation of the fight against racist laws stopping whites and blacks from marrying. Marriage is a fundamental Constitutional right, and in addition gays and lesbians deserve special protection from discrimination, they say.
The lawyers defending the ban say millennia of tradition limit marriage to heterosexual couples and that a state, without malice, can be cautious about changing the institution. Heterosexual couples can procreate, which society needs to continue, they add.
On Monday, District Court Chief Judge Vaughn Walker peppered lawyers with questions before they had made their cases. He stopped lawyer Ted Olson, arguing in favor of same-sex marriage, a couple of sentences into his presentation to ask if the state could simply get out of the marriage business altogether to avoid the question of discrimination.
"Yes, I believe it could," said Olson, who won President George Bush his presidency in 2000 in a case against Al Gore argued by David Boies - now working with Olson on this case.
Olson pressed ahead, but Walker asked whether the institution of marriage had improved as it changed over the years, and why the court should get involved in the case at all, since voters and legislatures are clearly engaged.
"We wouldn't need a Constitution if we left everything to the political process," replied Olson.
Charles Cooper, the chief lawyer defending Proposition 8, was able to begin his main argument, that the ban was passed legally in a state which gives broad support to gays.
"This speaks not ill will or animosity towards gays and lesbians but a special regard for this venerable institution," he said.
US President Barack Obama became a turning point early in the debate. When Judge Walker asked for evidence that changes in marriage law had improved the institution, Olson replied, "The President of the United States."
Obama's parents, a black man and a white woman, would not have been allowed to marry in Virginia before a Supreme Court decision allowing interracial unions in 1967.
Walker later asked for a response from Cooper, who said, "The limitation of marriage to a man and a woman is something that has been universal. It has been across history, across cultures, across society. The loathsome restrictions based on race are of an entirely different nature."
The trial is expected to last about two weeks. The Supreme Court on Monday halted plans to show video of the trial on the Internet, though it will consider the case more fully by Wednesday, when its stay ends. Walker agreed on Monday to allow video recording to continue in the meantime, in case the top court relents.