The Arguments in the Prop 8 Case

The federal trial over gay marriage has rested, and we won't know who won until U.S. District Judge Vaughn Walker calls the lawyers back to hear closing arguments and issues his ruling. That is likely to take several weeks. But it's already clear that the verdict itself will be only a beginning, as all sides shift their focus from testimony to the real task of convincing federal appellate judges, and ultimately the U.S. Supreme Court, to rule their way.

What's equally clear now, after nearly three weeks of evidence, is that no matter what happens, the debate over gay marriage will never again be the same.

By bringing this case, legal powerhouses David Boies and Ted Olson — who most famously opposed each other in the Supreme Court over the 2000 presidential election — have managed to make mainstream the notion of gay marriage in a way that not even years of campaigning by gay-rights groups had been able to. That began to be clear almost immediately after the trial began early this month, as Republican stalwarts, from Cindy McCain to Herbert Hoover's granddaughter, began to speak out in favor of gay marriage. "This trial, and Ted's and David's profiles as nationally prominent, mainstream opinion leaders, have made the whole issue mainstream and much less partisan," says Jennifer Pizer, director of Lambda Legal's National Marriage Project and one of the lawyers who warned that the timing of the case could be disastrous. Gay-rights experts still warn that strategy is highly risky given the frosty reception they fear it will receive at the U.S. Supreme Court.

But the trial, win or lose, has put on the dock a series of basic assumptions about what living in America should be like for millions of its citizens. For decades, governments at every level have created one set of rules for heterosexuals in America, and another set for its gays and lesbians. What the challenge to Prop 8 — California's 2008 vote to change its constitution to ban gay marriage — is all about is gathering hard evidence about the roots of that uneven playing field. Both sides see it as a crucial test of whether society can insist that heterosexual unions are worthy of the full sanction of the law in a way that other unions are not.

For his part, Boies told TIME that the trial has shown that legal discrimination against gays — in particular rules banning their marriage — starts with simple prejudice, in the form of religion-inspired views about the morality of homosexuality itself. "The Southern Baptist Convention describes homosexuality as an 'abomination,'" Boies told TIME, as he prepared for what would be three days of sometimes blistering cross-examinations as the trial wound down. "The Catholic Church calls homosexual activity 'gravely immoral.' Who is kidding whom? These are sincerely held beliefs, to which they are certainly entitled. But no one ought to kid themselves that what is behind [efforts to ban gay marriage] is anything other than a majority imposing its beliefs on other people." Says Mathew Staver, a longtime litigator for conservative, and often Christian, causes: "What has struck me is that the plaintiffs have tried to put Christianity on trial rather than Prop 8."

Though disputed by the other side, the argument has legal resonance because the U.S. Supreme Court has already ruled, in its landmark 2004 Lawrence v. Texas decision decriminalizing gay sex, that by itself moral opprobrium by the majority, no matter how long-standing, is not enough to justify discriminatory treatment of minorities, including gays and lesbians.

The Rev. Albert Mohler, a leading figure in the fight against gay marriage, says that in light of Lawrence, he understands Boies' line of attack. But he told TIME that marriage is different. It is "the central institution of human society." "The problem with that argument is that the current case has to do with marriage, not merely with the right to engage in certain sexual acts," says Mohler, who is the longtime president of the flagship seminary of the Southern Baptist Convention in Louisville, Ky. "There are more than ample grounds to argue that the sustenance of marriage is necessary for the flourishing of human culture. Thus, anything that damages marriage or subverts its place in society is deleterious in its effects. Throughout history, societies have regulated marriage with this danger in mind, recognizing in marriage the privileged status granted to the heterosexual union as the best context for procreation and the raising of children — functions understood to be vital to the society's well-being. The argument put forth by Boies would mean the effective deregulation of marriage, since his arguments already presented in court could be proposed by any number of others, including those representing polygamists."

Archbishop Joseph Kurtz of Louisville, the U.S. Conference of Catholic Bishops' point man on the issue, told TIME that "the difference between man and woman allows them to make the fundamentally unique commitment of marriage, ordered to love and the creation and nurturing of new life. Because of the unique nature and responsibilities of this relationship, it deserves the protection and promotion of the state."

Some legal experts say the record isn't clear that religious views are the root of all opposition to gay marriage. "The stone-cold truth is there's more to opposition to same-sex marriage than the view that homosexuality is immoral, big part of it though that is," says Professor Marc Spindelman of Ohio State University's Moritz College of Law. "While evidence suggests there were those who thumped for Prop 8 who did so from religious scruples, not everybody who voted for it did." Some voters, he says, simply fear that not enough is known yet about the effect on children who are raised by gay parents, or even how stable or lasting gay marriages may turn out to be. "You can look at this two ways. You can say there is no evidence of harm, or you could say there is not yet affirmative evidence on the other side either."

The lead attorney defending Prop 8, former Justice Administration lawyer Charles Cooper, made a similar point in his argument before Walker. "The same-sex marriage is simply too novel an experiment at this stage to allow for any firm conclusions about its long-term effect on traditional marriage and the societal interests," he said.

That's where the trial — and the federal rules of evidence that govern it — comes in. "This case clearly presents a clash of worldviews," Spindelman says. "But the legal system can't just pick sides between them; it couldn't and still be a decision consistent with the rule of law. There must be reasons for whatever conclusion the trial court reaches and facts supporting them."

The plaintiffs called more than a dozen witnesses, including the two gay couples who are the plaintiffs, to speak about the importance of marriage, its impact on children and the role religion played in the campaign for Prop 8. The defense called just two witnesses, who attempted to show that marriage is fundamental to human society and that it has nearly always been limited to one man and one woman. Boies, who led an often blistering cross-examination, wrung concessions from those witnesses that thrilled gay-marriage supporters, including a statement that allowing gay marriage would help the children already being raised by gay couples who are not allowed to be married.

Cooper tried to make a different case, namely that the government's interest in preserving marriage as it has traditionally been understood is not just legitimate, but vital. "The question is, Is this institution designed for these pro-child reasons or is it to produce companionship and personal fulfillment and expression of love?," he said in court. "Are those purposes themselves important enough to run risks to the accomplishment of the pro-child purposes?"

Of course, what makes this fight in a San Francisco courtroom so special is that it's not just a fiery classroom debate over theology, but a fight over evidence that will be used by lawyers on appeal to convince higher courts that the prohibitions against gay marriage are illegal under the U.S. Constitution. Pizer, the gay-rights lawyer, says that has been the key to Olson and Boies' strategy throughout the trial. "The presentations are a combination of evidence that relates to the elements of the particular legal tests and also compelling narrative that shows who gay people are, which is important because the pervasive invisibility of most gay people is our biggest challenge. So some of the plaintiffs' testimony was to reveal the hurt most of us usually don't express, which supports the legal claim that there is an injury of sufficient magnitude to warrant a remedy. And other testimony was to show that the supposed reasons for reimposing a caste system are a mixture of baseless nonsense and deliberate lies. All of it relates to elements of the legal tests."

Which side has done a better job navigating those tests will become a little clearer when Walker issues his ruling, probably by early March. Then the real fight will begin.

But some observers say the early rounds have already gone to gay-marriage supporters, no matter what the courts ultimately say. "Who remembers the outcome of the Scopes trial? Evolution lost the battle, though it has largely carried the day," Spindelman says, noting that Olson's stature as an elder within the Republican Party has made his involvement carry a message of its own.

Staver says he's not worried about traditional marriage. "I don't think this has mainstreamed this matter," says Staver, who is now the law dean at Liberty University. "Two attorneys and a few people testifying in court will not sway millions of minds on this issue." Across America, gay couples eager to join the 18,000 who married before California changed its laws are certainly hoping he's wrong.