After months of legal wrangling, closing arguments are being heard Wednesday in California’s landmark gay-marriage trial, Perry v. Schwarzenegger. Before the trial began in January, lawyer Ted Olson wrote an essay for NEWSWEEK explaining why he felt that marriage was a fundamental right guaranteed by the Constitution to all citizens, including those who wish to marry a same-sex partner. Olson, a conservative lawyer and Supreme Court expert who represented George W. Bush in Bush v. Gore, has argued against what he’s called a “crazy patchwork” of laws in California related to marriage.
Alongside David Boies, Olson is seeking to demonstrate that California’s Prop 8, which stripped away the rights of same-sex couples to marry, is unconstitutional. Defenders of Prop 8 argue that marriage is a male-female union, one that guards children’s welfare and societal mores. They also argue that banning Prop 8 would dishonor the moral and religious views of the Californians who voted for it, and have complained that they have been significantly outmatched financially, describing their fight against the gay-rights legal team as a kind of “David vs. Goliath”. In their final written filing, the defense took their argument one step further, calling on Judge Vaughn Walker to revoke state recognition of the 18,000 same-sex marriages conducted before voters passed Prop 8, and thus avoid the issue of different groups of Californians being afforded different rights.
The plaintiffs in the case are two gay couples, one with several children, who have spoken with NEWSWEEK about why they wish to get married and the challenges of being the focus of national attention. On the first day of the trial, in January, each of the four gave moving testimony covering topics such as when they “came out,” how they are raising their children, and the psychological toll of being banned from marrying their loved ones. Olson and Boies, the legal team assembled by the American Foundation for Equal Rights for the plaintiffs, had hoped that cameras would be allowed in the courtroom. Their fight to televise the proceedings reached the Supreme Court but was unsuccessful. The lack of cameras has prompted one group to reenact the entire trial with actors. Judge Walker’s ruling could be weeks away, and the case is eventually expected to reach the U.S. Supreme Court.