U.S. District Court Judge Vaughn Walker

SAN FRANCISCO — The trial to challenge Proposition 8 in federal court got underway Monday in San Francisco but the opening acts were upstaged in Washington, D.C. just minutes before the proceeding began.

U.S. Supreme Court Justice Anthony Kennedy asked the full court to weigh in on the fairness of allowing videotaped proceedings of the trial be made available on YouTube and on closed circuit television in courthouses outside San Francisco. The one-page order, from which only Justice Stephen Breyer dissented, blocks viewing of the courtroom activities until at least Wednesday at 4 p.m. Eastern.

U.S. District Court Judge Vaughn Walker, an appointee of President George H.W. Bush who is presiding over the case, Perry v. Schwarzenegger, told the courtroom Monday that his office had received 138,574 comments from people regarding whether to make the court proceedings available for delayed viewing on YouTube; only 32 of those opposed the idea, he said.

Walker, who is chief of judges in the District Court for Northern California, looks like a slender Burl Ives and has the voice of a Walter Cronkite. His style as a judge is both congenial and aggressive. Rather than allowing lead attorneys on both sides to deliver their requisite opening statements through soliloquies, Walker jumped in frequently, challenging various statements and asking what evidence the attorneys would be submitting to prove their claims.

“This case is about marriage and equality,” said Ted Olson, the conservative legal icon who is leading the team challenging Proposition 8. “The Supreme Court of the United States has repeatedly described the right to marriage as ‘one of the vital personal rights essential to the orderly pursuit of happiness by free men;’ a ‘basic civil right;’ a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self.”

But before Olson could get much further into his prepared remarks, Walker interrupted with a question.

“Does the right to marriage mean you have a right to a marriage license from the state?”

“If the state regulates marriage, yes,” said Olson.

“Why?” asked Walker

Olson seemed to acknowledge that the question was puzzling to him.

“Why does the state have a duty to issue a marriage license?” asked Walker.

Olson said there were a number of reasons why the state chose to be in the business, for instance, to protect persons who might be too young. And then Olson tried to return to his prepared remarks.

Later, playing devil’s advocate again, Walker paraphrased an argument frequently used by opposing counsel, Charles Cooper, and asked why the court should even be involved in this dispute.

“Mr. Cooper frequently makes the point that the court should not involve itself” in this dispute, said Walker. “That this is just the playing out of the political process. Why shouldn’t the courts stand back?”

“Because that is why we have courts,” said Olson. “That is why we have a constitution….We wouldn’t need a constitution if we left everything to the political process.”

Walker challenged San Francisco’s Chief Deputy City Attorney, Therese Stewart, during her opening statement to explain what evidence she would offer to support the city’s claim that allowing same-sex marriage licensing would create a $3 billion surplus for the city. He prodded counsel representing the California Attorney General’s office to explain why a law Attorney General Jerry Brown has said he considers unconstitutional to be put on the ballot.

When Cooper, the lead attorney for the Yes on 8 team, delivered his opening statement he said the people of California, in passing Proposition 8, were not seeking to express animosity for gay people but rather to “preserve the traditional definition marriage…that has prevailed in virtually every society in recorded history.”

He noted that President Obama has also expressed opposition to same-sex marriages, and Walker interrupted.

“If the president’s parents had lived in Virginia, their marriage would have been unlawful,” said Walker, referring to the fact that President Obama’s mother was white and his father was African American. “Doesn’t that indicate there’s been quite a change in our understanding of what people are entitled to marry? Couldn’t an argument be made that there’s been a similar evolution with respect to same-sex marriage?” When Cooper tried to argue that marriage is primarily a vehicle to promote procreation and the well-being of children, Walker prodded him to explain why values such as companionship and support aren’t also important aspects of marriage. And when Cooper tried to characterize the pursuit of marriage equality for same-sex couples and an effort to radicalize the institution of marriage, Walker challenged him to explain “what evidence” he would show to support that idea.

In one particularly amusing exchange, Walker asked Cooper to explain what evidence he would present to support his contention in court papers that allowing marriage licenses for same-sex couples would lead to a state of law in which bisexuals would have to be allowed to participate in “group marriages”–or polygamy.

Cooper said the argument was based on logic.

“If an individual has a right to marry the person of his or her choice to express love and have public recognition of that love,” said Cooper, then it would be “difficult to say to a bisexual, if that individual loves two people, that that individual doesn’t have the same right to express their love [for two people simultaneously] and have their love recognized by the state.”

“It’s not a far-fetched assumption in light of modern concepts of family,” said Cooper.

“And it’s not unheard of among heterosexuals, is it?” quipped Walker.

The first witnesses

There were a number of humorous and serious moments during this first day of trial–particularly during testimony by the lawsuit’s four openly gay plaintiffs–Kristin Perry, Sandra Stier (pronounced steer), Jeff Zarillo, and Paul Katami.

In trying to respond to attorney David Boies, Olson’s chief co-counsel in the case, about why he didn’t think a domestic partnership was good enough, Katami, a 37-year-old group fitness manager in San Francisco, offered the metaphor of putting a Twinkie at the end of a treadmill and giving the person on the treadmill just one bite.

“I want that whole Twinkie,” said Katami. He elaborated to explain that he wants “full marriage” not just partial benefits.

All four plaintiffs spoke movingly about how much they value their personal relationships and how much hurt and anguish they felt at hearing and seeing the “Yes on 8” campaign ads that suggested gay people and same-sex marriage posed some threat to children.

Perry, 45, a native of Illinois who moved to California when she was two, is a 25-year veteran of working in governmental agencies that seek to protect vulnerable children ages birth to five. And one of the reasons she and Stier wanted to get married was so that their own four children would have a clear understanding of their relationship.

When one uses the term marriage, said Perry, “children know what your relationship is …and other people know what your relationship means.”

All four plaintiffs conveyed their discomfort with having people misunderstand who their “partners” were, assuming they had a business relationship, not a lifelong personal commitment to each other.

Stier said it’s distressing when she goes to “our son’s school to pick him up and I have to explain who I am.”

“Domestic partner or partner are not really that commonly known [terms],” she said, “and it doesn’t reflect our relationship in a way that feels authentic. We’re not business partners, we’re not social partners, we’re not glorified roommates.”

When they must fill out forms at school, said Stier, the choices are “mother or father–never a place to say Parent 1 or Parent 2.”

“In the doctor’s office, they ask are you single, married, or divorced,” she said. The term marriage, she explained, “provides a sense of inclusion in the social fabric.”

“I want to have that and would feel more respected by other people,” said Stier. “I could hold my head up high. And I want our children to feel proud of us–not worried about us or that our family isn’t good enough.”

The testimony by plaintiffs was aimed at emphasizing both the injury done to gay people by being excluded from marriage licensing and also the hostility they experienced from the messages conveyed during the “Yes on 8” campaign. That discrimination and hostility will bolster the plaintiffs’ contention that is a law that is based on animus for gay people and, in so doing, runs afoul of the U.S. Supreme Court’s ruling in Romer v. Evans. In that case, the high court struck down a ballot initiative approved by Colorado voters in 1992 to ban gay people from protection under all discrimination laws.

The history of freedom

The fifth and last witness of the day was Harvard American history professor Nancy Cott who was brought in to testify as an expert in the history of marriage in the United States.

Cott told the court that Yes on 8 attorneys’ contention that marriage has always been between one man and one woman is simply “inaccurate.”

“There have been many forms of marriage that are not one man and one woman,” said Cott, adding that polygamy was sanctioned in ancient Judaism and is prevalent in Muslim cultures today. She said the prevalence of monogamy in the United States is attributable to “the success of Christian evangelism.”

Cott explained marriage as being an expression of liberty.

“Slaves could not marry legally because unfree persons could not consent” to marriage, said Cott.

Cott noted that the famous U.S. Supreme Court case involving Dred Scott was illustrative. The 1857 decision held that a black man could not be considered a citizen of this country and was not entitled to any of the privileges of citizenship, even in states that prohibited slavery. That included the right to marry.

Cott said she sees “parallels” between Proposition 8 and the restrictions against slaves being able to marry in pre-Civil War America. Slaves still formed marriages, she noted, but slave owners could break up those relationships and did so “all the time, and no state authority gave any protection or credence to these relationships.”

Cott’s testimony will resume at 8:30 Pacific time tomorrow morning.