Judge Grills Lawyers at Gay Marriage Trial

Same-sex marriage supporter Marilee Kreml waves flags during a rally in front of a federal courthouse in San Francisco, Jan. 11, 2010. (AP Photo/Paul Sakuma) AP Photo/Paul Sakuma

Updated at 4:55 p.m. EST

The judge presiding over a highly anticipated gay marriage case peppered lawyers with questions Monday as they presented their opening statements, frequently interrupting the introductory remarks to ask if there was evidence underlying the remarks.

The first federal trial on the constitutionality of state bans on same-sex marriage got under way with former U.S. Solicitor General Theodore Olson quoting the U.S. Supreme Court's own lofty description of matrimony to demonstrate what his clients are being denied. Olson represents two same-sex couples suing to overturn Proposition 8, California's voter-approved ban on same-sex marriage.

"In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals," Olson told a courtroom packed with witnesses, reporters and members of the public.

He was just launching into his oratory when Chief U.S. District Judge Vaughn R. Walker, who is hearing the case without a jury, interjected to ask if a legally recognized right to marry meant a person was entitled to a marriage license.

Walker also asked how the ban is discriminatory since California allows domestic partnerships with the same rights and benefits of marriage.

"If California would simply get out of the marriage business and classify everyone as a domestic partnership would that solve the problem?" the judge asked.

Olson answered that he did not think such a move would be politically feasible.

"I suspect the people of California would not want to abandon the relationship that the proponents of Proposition 8 spent a tremendous amount of resources describing as important to people, and so important it must be reserved for opposite-sex couples," he said.

Charles Cooper, a lawyer for sponsors of the ban approved by voters in 2008, said in his opening statement that it's too difficult to know the impact of gay marriage on traditional marriage because the practice is still so new.

He urged the court to take a wait-and-see approach.

CBS News legal analyst Trent Copeland says the "fundamental issue at play is whether or not a proposition - a measure passed by the will of the people - if it violates the federal constitution, which one prevails?"

Regardless of the outcome of the case, it's likely to be appealed to the U.S. Supreme Court, where it ultimately could become a landmark that determines if gay Americans have the right to marry.

About 100 people demonstrated outside the federal courthouse. Most were gay marriage supporters who took turns addressing the crowd with a microphone. About a dozen gay marriage foes stood in the back of the gathering and quietly held signs demanding the ban remain in place.

Two hours before trial was scheduled to start, the high court blocked video of the proceedings from being posted on YouTube.com. It said justices need more time to review that issue and put the order in place at least until Wednesday.

Over the weekend, Proposition 8's sponsors sought to block YouTube broadcasts. Chief U.S. District Judge Vaughn R. Walker, who is overseeing the trial, had approved the plan last week, saying the case was appropriate for wide dissemination because it dealt with an issue of wide interest and importance.

Rick Jacobs, chairman of the Courage Campaign, a Los Angeles-based gay rights organization, said supporters of same-sex marriage were disappointed with the decision to bar cameras and called on the high court to lift its ban Wednesday.

"It's time that the debate about marriage equality is seen for what it is — a debate over the rights of our friends and families to live their lives freely," he said.

At trial, Walker intends to ask lawyers on both sides to present the facts underlying much of the political rhetoric surrounding same-sex marriage. Among his questions are whether sexual orientation can be changed, how legalizing gay marriage affects traditional marriages and the effect on children of being raised by two mothers or two fathers.

Witnesses for Proposition 8 backers will testify that governments historically have sanctioned traditional marriage as a way to promote responsible child-rearing, and that this remains a valid justification for limiting marriage to a man and a woman.

While other courts have wrestled with the constitutional issues raised by prohibiting same-sex marriages — the Supreme Court last took a look at the issue 38 years ago — Walker's court is the first to employ live witnesses in the task. Among those set to testify are the leaders of the Proposition 8 campaign, academic experts from the fields of political science, history, psychology and economics, and the two plaintiff couples — Kristin Perry and Sandra Stier, who live in Berkeley, and Paul Katami and Jeffrey Zarrillo, who live in Los Angeles.

Chad Griffin, a political consultant who helped spearhead the lawsuit, said the four were recruited to represent California couples who say they would get married were it not for Proposition 8 because they lead lives indistinguishable from those of other couples, gay or straight, who have jobs, children and a desire for the social stamp of approval that matrimony affords, Griffin said.

"Our story, I think, is pretty ordinary," said Perry, 45, the title plaintiff in the case registered on legal dockets as Perry v. Schwarzenegger. "We fell in love, we want to get married and we can't. It's pretty simple."
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