Tearful testimony on discrimination at Prop. 8 trial

By Maura Dolan

Jan. 11, 2010 12 AM PT

Reporting from San Francisco — A widely anticipated federal trial over the constitutionality of California’s ban on same-sex marriage opened Monday, with lawyers and witnesses debating the meaning of marriage and sexual orientation and gay and lesbian couples testifying about the humiliation of being denied matrimony.

While supporters of same-sex marriage demonstrated in the fog outside the San Francisco courthouse and the U.S. Supreme Court wrangled with whether to allow video coverage of the trial, the case moved along briskly, with sometimes tearful testimony from the two same-sex couples who brought the lawsuit and an explanation of the roots of marriage by a Harvard historian.

FOR THE RECORD:
Proposition 8 trial: An article Tuesday in Section A about the first day of a federal trial on the constitutionality of Proposition 8, which banned same-sex marriage in California, said supporters of same-sex marriage demonstrated outside the San Francisco courthouse. Demonstrators included both supporters and opponents of same-sex marriage. —

The lawsuit charges that Proposition 8’s reinstatement of a state ban on same sex-marriage violates the U.S. Constitution’s guarantees of equal protection and due process. The constitutionality of the ban is expected to eventually reach the U.S. Supreme Court as a landmark case.

Two legal giants -- former Solicitor General Theodore Olson and attorney David Boies, who were on opposing sides in the high court case that gave George W. Bush the presidency -- have joined forces in Perry vs. Schwarzenegger seeking to eventually persuade the Supreme Court to overturn marriage bans.

In his opening argument, Olson called marriage “one of the most vital personal rights” and a “basic civil right.” Withholding it from gays and lesbians “doesn’t make sense,” he said.

U.S. District Judge Vaughn R. Walker asked if the state should simply get out of the business of issuing marriage licenses.

“That may solve the problem,” Olson said, but it “would never happen.”

Walker also asked Olson if voters are entitled to pass laws stemming from “moral disapproval,” such as prohibitions on alcohol.

Olson replied that U.S. history is filled with moral condemnation of people based on their race, gender and ethnicity. Proposition 8, passed by 52.3% of California voters in 2008, perpetuates discrimination “for no good reason,” Olson said.

Charles J. Cooper, who is representing the Proposition 8 campaign and has argued many cases before the Supreme Court, told Walker that a limitation of marriage to opposite-sex couples has “prevailed in virtually every society since early history.”

Walker noted that many states once barred interracial marriage. Cooper replied that those laws were based on a notion of “white supremacy,” and not on a long-standing tradition.

Cooper said the evidence would show that opposite-sex marriage is good for children, and that the “procreative purpose of marriage” would be “diluted or weakened” if same-sex couples were permitted to marry.

Asked what evidence exists to show that same-sex marriage would “radically alter the institution of marriage,” Cooper replied that data from the Netherlands will show that it leads to a decline in marriage rates. He said it also would lead to more children being raised outside of marriage and higher divorce rates.

But he added that same-sex marriage is still too rare and novel an “experiment” to draw conclusions about its long-term impact. Noting that only five states and seven countries permit gays and lesbians to wed, Cooper said, “The people of California are entitled to await the results of that experiment.”

Jeffrey J. Zarrillo, one of the plaintiffs, was the first to be called to the stand. Zarrillo, 36, a manager in the entertainment industry, testified tearfully about being denied the right to marry Paul T. Katami, his partner of nearly nine years and a co-plaintiff.

“He is the love of my life,” Zarrillo said. He testified that marriage “is the logical next step” for him and Katami. It would send the message that they are serious and committed to each other, he said. Checking into hotels with Katami is often “awkward,” he said, as clerks sometimes ask if they meant to reserve a king-size bed.

To eliminate confusion and embarrassment, he said, he would like to say, “My husband and I are here to check in for our room.”

Asked whether he might one day marry a woman, Zarrillo said he felt no attraction to or desire to be with a member of the opposite sex.

Katami, 37, a group fitness manager, called himself “a natural born gay” and testified that being denied marriage felt like being “relegated to a corner.”

“I don’t think of myself as a bad person,” Katami said in response to questions from Boies.

During cross-examination, attorney Brian W. Raum noted that nothing in Proposition 8 suggested that children needed to be protected because homosexuals were bad. Katami was the only one of the four plaintiffs to be questioned by the defense.

Raum, an attorney with the Alliance Defend Fund, a Christian legal advocacy group, put into evidence a film clip of two parents in Massachusetts complaining that their son’s second-grade teacher read the class a book about two princes getting married.

Olson questioned lead plaintiffs Kristin M. Perry and Sandra B. Stier, a lesbian couple from Berkeley with four sons who were denied a marriage license in May.

The couple married in San Francisco in 2004, but their union and others were later invalidated by the California Supreme Court because the state’s marriage ban was still in place.

When her marriage was invalidated, Perry, 45, who runs a state agency for children, said she felt that “I am not good enough to be married.” She said she and Stier decided not to marry during the brief time same-sex marriage was legal in California in 2008 because they feared it would again be struck down. Advertising for Proposition 8 implied that voters needed to protect children from people like her, Perry said.

“I felt like I was being used,” she testified. “ The fact that I am the way I am and I can’t change the way I am was being mocked and disparaged.”

All of the plaintiffs testified that domestic partnership is substantially different from marriage. They complained that they do not have access to the word “marriage” to explain their relationships and feel either shunned or pitied.

The day ended with testimony from Harvard professor Nancy Cott, an expert in the history of marriage in the United States.

She said Cooper’s opening statement that marriage between two members of the opposite sex was universal was inaccurate. Ancient Jews were polygamous, she said, and in some countries Muslims can marry several women.

In a 19th century case, she said the U.S. Supreme Court denied Dred Scott, a black man, citizenship partly on the grounds that he was not permitted to marry a white woman. The court said that was a “stigma that marked him as less than a full citizen,” she testified. “In marrying, one is exercising a right of freedom,” she said.

At the start of the trial, Walker announced that the Supreme Court had prevented video coverage of the proceedings pending further review.

The high court’s order will remain in effect until Wednesday. Walker called it “highly unfortunate” that the federal court system has yet to resolve the “public right to access.”

Walker noted that 138,542 people had sent the court messages of support for public dissemination of the trial and only 32 opposed it.

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Times staff writer David G. Savage in Washington contributed to this report.