Battle Over Gay Marriage Reaches Federal Court

By Lawrence D. Jones, Christian Post Reporter Monday, January 11, 2010

Advocates from both sides of the gay marriage debate began assembling outside a federal court in San Francisco Monday morning as they awaited the start of a highly anticipated trial that seeks to determine whether gay marriage is a constitutional right and, in effect, whether the decision of the majority to define marriage as the union between a man and a woman violates that right.

For the next two to three weeks, Chief U.S. District Judge Vaughn R. Walker will hear from lawyers arguing for and against Proposition 8, the constitutional amendment passed by California voters in November 2008 that defined marriage between a man and woman as the only one valid or recognized in the state.

Arguing for same-sex marriage will be former U.S. Solicitor General Theodore Olson and trial lawyer David Boies, two influential litigators tapped by the liberal Hollywood activists funding the lawsuit against the state. They will be representing two gay couples who will be among the first witnesses called to the stand.

Arguing against same-sex marriage, meanwhile, will be a legal team led by veteran trial lawyer Charles Cooper, backed by the Alliance Defense Fund, a Christian legal group based in Arizona. They will be representing sponsors of Prop. 8, who won permission to defend the law in court after Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to.

The case, which will be watched closely by people on both sides of the marriage debate, could lead to a precedent for whether gay marriage becomes legal nationwide and, as traditional marriage advocates say, whether the nation's democratic principles will be upheld.

"What's at stake in this case is not only the definition of marriage in California but the potential that Americans will be forced to forfeit the core of our democracy by allowing a small group of wealthy activists to impose their will on a state – or an entire nation – through the courts," Austin R. Nimocks, senior legal counsel for Alliance Defense Fund, told The Christian Post.

If federal judge Walker decides to overturn Prop. 8, marriage laws in 45 states and the federal Defense of Marriage Act may ultimately be nullified, the attorney added.

Last year, the California Supreme Court rejected lawsuits against the amendment, ruling that it was not an illegal constitutional revision by the people nor unconstitutional. Olson and Boies filed a federal lawsuit in May just before the state high court ruling.

Regardless of how the trial in San Francisco concludes, an appeal will likely be filed to the U.S. Supreme Court, which could end up determining whether gay Americans have a right to marry.

The case is Perry v. Schwarzenegger.