Future of Proposition 8 now in hands of judge


The question is, is Proposition 8 constitutional?

Voters approved the ban on gay marriage two years ago. Opponents sued and now attorneys have closed their cases and it is up to the judge.

Testimony in the trial ended back in January and Chief U.S. District Court Judge Vaughn said he did not expect such a long hiatus between then and now with the closing arguments. However, maybe it is appropriate he said, pointing out that "June, after all, is the month for weddings."

The case involves two same-sex couples, lesbians from Berkeley and gay men from Southern California, who say the ban on same-sex marriages voters approved in November 2008 violates their constitutional right to marry the one they love.

"This case, for us, is about how we as Americans just want to be treated equally by our government and under the law," Sandy Stier said.

Their attorney, Ted Olson, argued that the U.S. Supreme Court has ruled, in 14 cases since the 1880s, that marriage is the most important thing in life and a fundamental right of all Americans. He says Prop 8 discriminates against gays and lesbians by treating them different than their heterosexual counterparts.

"We have said from the beginning that when Proposition 8 took away the right to marry that had existed in California under the California Supreme Court decisions, that was a deprivation of equal protection and a deprivation of due process," said anti-Prop 8 attorney David Boies.

On the other side of the case, attorneys for Governor Schwarzenegger and Attorney General Jerry Brown waived their closing arguments. However, the judge did have questions for the attorney representing state registrars regarding gender on marriage licenses and the difference between those licenses and domestic partnerships.

The judge then turned his attention to Proposition 8 attorney Charles Cooper who argued that marriage has always been between a man and a woman, saying its primary purpose was to have children. Without marriage, he said, "Society would come to an end" therefore, same-sex couples cannot marry.

"When the 7 million voters of California voted for Prop 8, they made a reasonable legitimate public policy that the constitution permits, and that the federal judge should just defer to their decision," said Jordan Lorence with the Alliance Defense Fund.

ABC7 legal analyst Dean Johnson was struck by how hard the judge was on the supporters of Prop 8. He asked them repeatedly to cite specific evidence supporting their argument and questioned the validity of their witnesses.

"The defendants have said, 'We don't need evidence." If you can conceive of any reason to uphold Prop 8, then it should be upheld.' And, that's the problem," Johnson said. "Because the judge is becoming very impatient with the constant refrain from the defendants that, 'We don't need to produce evidence.'"

There is no deadline for when the judge must rule, but whatever he decides will certainly be appealed.

Written and produced by Ken Miguel.

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