The US District Court for the Northern District of California [official website] on Wednesday heard closing arguments [transcript] in Perry v. Schwarzenegger [case materials], challenging the constitutionality of Proposition 8 [text; JURIST news archive]. During closing arguments, the attorneys for the plaintiffs argued that the state ban on same-sex marriage [JURIST news archive] violates the Equal Protection Clause and the Due Process Clause [Cornell LII backgrounders] of the 14th Amendment to the US Constitution [text]. Former solicitor general Ted Olson [professional profile], argued for the plaintiffs that denying same-sex couples the ability to marry denied them a fundamental constitutional right based solely on their sexual orientation. Olson argued that the court must therefor apply strict scrutiny [Cornell LII backgrounder], a standard of review that would require the defense to show a compelling interest in continuing the ban in order for it to be constitutional. In his argument, Olson stated:
This case is about marriage and equality. The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly-situated Californians. Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized, and second rate. Their state has stigmatized them as unworthy of marriage, different and less respected. ... It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could ... be withdrawn[.]In the closing arguments in defense of Proposition 8, former assistant attorney general Charles Cooper [professional profile] stressed the importance of the institution of marriage to society as a means to "responsible procreation." He argued that the standard of review applied by the court should be the lower standard of rational basis review [Cornell LII backgrounder], which he argued has been applied by nearly every federal court that had ruled on discrimination based on sexual orientation. He argued that under this standard the ban should be upheld, stating:
[T]he plaintiffs say ... there is no way to understand ... why anyone would support Proposition 8, why anyone would support the traditional definition of marriage except through some irrational and dark motivation, some animus, some kind of bigotry, your Honor. And that is not just a slur on 7 million Californians who supported Proposition 8. It's a slur on 70 of 108 judges who have upheld as constitutional and rational the decision of voters and legislatures to preserve the traditional definition of marriage. It denies the good faith of Congress -- not just these judges, of Congress -- of state legislature after state legislature and electorate after electorate.Chief Judge Vaughn Walker is expected to issue his ruling within the next few weeks. Regardless of the outcome, the losing side is considered likely to appeal the ruling [NYT report] in the case.
The case began in January [JURIST report] with opening statements from lead attorneys and testimony from plaintiffs seeking the right to marry their same-sex partners. In October, Walker ruled that the case could be heard in federal court [JURIST report]. Walker has said the trial is necessary to ascertain the level of constitutional protection granted to same-sex couples. The lawsuit was filed [complaint text] in May 2009 after Proposition 8 was approved [JURIST report] by California voters in November 2008, overturning a decision [text; JURIST report] of the California Supreme Court [official website] finding that same-sex marriage must be allowed under the California Constitution [text]. Several jurisdictions in the US have legalized same-sex marriage. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report], in legalizing same-sex marriage.