Crime & Justice

Judge To Take Weeks To Rule On Gay Marriage

A judge is considering the fate of California's Proposition 8, in which the voters banned same sex marriage. Two couples sued, saying the ban violates their civil rights. The proponents of Prop 8 say it preserves the true definition of marriage.

A federal trial on the constitutionality of California's ban on same sex marriage wrapped up Wednesday.

Two years ago, voters there approved Proposition 8, which overturned same sex marriage. Two couples, one gay and one lesbian, filed suit challenging Prop 8 as an infringement of their civil rights.

Supporters of Prop 8 say they are only trying to preserve the traditional definition of marriage.

Federal Judge Vaughn Walker allowed lawyers for and against same sex marriage five hours for closing arguments. This was on top of 12 days of testimony in January.

Opponents of Prop 8 were represented by a prominent conservative, former Solicitor General Ted Olson. He said that supporters of Prop 8 were trying to deny gays and lesbians the fundamental right to marriage already recognized by the Supreme Court.

"The Supreme Court said it's inherent in the right to privacy, in liberty, in association, in a spirituality and to be able to identify ourselves," Olson said in a news conference after closing arguments. "That is the quintessential right of Americans and it's being taken away."

Olson compared this suit to another landmark case about marriage -- Loving v. Virginia. That's the 1967 case in which the Supreme Court ruled that interracial couples have the right to marry.

"The proposition doesn't want people to have a full choice," Olson said. "You can marry anyone you want unless it's a person of the same sex. And it's based on a sexual orientation discrimination which the Supreme Court said intimate private sexual behavior is protected by the Constitution."

But the attorney for the supporters of the gay marriage ban Charles Cooper rejected the comparison with interracial marriage. The real issue, he argued, is that marriage exists for the procreation of children who are raised in stable relationships.

Cooper said the people of California had the right to preserve this traditional definition of marriage. "The central and overriding question is whether the issue before the court which was before the people of California should be decided in his courtroom by him or whether an issue like this should be decided by the people themselves."

During the testimony stage in January, the opponents of the ban called eight expert witnesses who testified on the sociology, economics and history of marriage. The supporters called only two, who testified that marriage should be limited to a man and a woman.

Austin Nimocks of the Alliance Defense Fund, a group opposing gay marriage, said his side remains confident that they made their case.

"Defending Prop 8 is playing defense," Nimocks said. "It's the burden of proof which Judge Walker made abundantly clear that belongs to the plaintiffs to have to prove that Prop 8 is unconstitutional."

Prior to closing arguments, Judge Walker gave both sides a list of 39 questions on all aspects of their cases.

"It looks from the questions that he's thinking through all of the possible consequences of the different avenues of decision even to the smallest detail," said Marc Spindelman, a law professor at Ohio State University.

Spindelman added however Judge Walker rules on same sex marriage, the case will wind up before the U.S. Supreme Court. Copyright 2010 National Public Radio. To see more, visit