Marriage Trial

In its January 13, 2010 ruling, the U.S. Supreme Court blocked the public broadcast of Perry v. Schwarzenegger, a U.S. District Court case challenging the constitutional validity of California’s Proposition 8.

Working from court transcripts and first-hand accounts from bloggers who are present at the trial, we are re-enacting the trial and posting it here for public viewing.

Day 1

Day one of the trial begins with the judge explaining his proposed broadcasting of the trial and the U.S. Supreme Court’s order temporarily blocking it, followed by administrative matters.

The trial then gets underway with opening statements by attorneys for the plaintiffs (Ted Olson & Therese Stewart) challenging Proposition 8 on federal constitutional grounds and by the attorney for the official proponents of Proposition 8 (Charles Cooper), who intervened to defend its contitutionality (as Defendant-Intervenors). They did not trust Governor Schwarzenegger and Attorney General Jerry Brown to do so adequately, and indeed, those governmental defendants have taken the position that Proposition 8 is unconstitutional and they are not defending it.

Ted Olson, one of the lead attorneys for plaintiff couples Kristin Perry & Sandra Stier and Paul Katami & Jeffrey Zarrillo, explains that the plaintiffs are arguing that:

  • Proposition 8 violates federal constitutional rights to equal protection and to marry;
  • Marriage is of great importance in U.S. society and lack of access to it stigmatizes and harms same-sex couples and their families;
  • There is “no good reason” for the discrimination worked by Proposition 8 – not procreation or parenting;
  • Proposition 8 was enacted out of prejudice based on stereotypes of gay and lesbian people; and
  • It is the courts’ role to protect the constitutional rights of vulnerable minority groups.

Therese Stewart explains for San Francisco that the city will contend that Proposition 8:

  • Contributes to anti-gay hate crimes; and causes significant economic losses to the city and state.

Charles Cooper then argues for the Defendant-Intervenors that:

  • Proposition 8 restores a traditional definition of marriage;
  • California generously protects gay and lesbian people as a consequence of great political power;
  • Opposition to marriage for same-sex couples is not necessarily born of prejudice;
  • Heterosexual procreation is a central purpose of marriage;
  • Letting same-sex couples marry risks transforming marriage away from being a pro-child institution and leads to various social harms; and
  • The effects of letting same-sex couples marry is uncertain and so courts chould defer to the people’s choice not to experiment.

David Boies then conducts the direct examination of plaintiff couples Jeffrey Zarrillo & Paul Katami and Kristin Perry & Sandra Stier about:

  • their relationships;
  • the harms they’ve faced through being denied the right to marry;
  • the discrimination they’ve faced; and
  • their reactions to the¬†Yes on 8¬†campaign.

Brian Raum, another defense attorney, cross-examines Paul Katami about his views on parental rights and responsibilities for their children’s upbringing.

The day concludes with the initial questioning of plaintiffs’ witness Nancy Cott, a professor of history at Harvard who has extensively studied marriage and its significance to couples and to society. Cott discusses the non-religious character of marriage laws in the U.S. from the past to present; the social meaning of marriage today; interactions of marriage law and race in U.S. history; and relationships between choice and consent and marriage as a civil right.


“The Supreme Court stopped the video!” A wave rolled through the crowd of media waiting for the doors to open on the first day of the gay marriage trial. The defendants, the coalition that sponsored the prohibition on gay marriage, had gotten the Supreme Court to stop the public from seeing the biggest public trial of the decade. This re-enactment is as close as you’re going to get.

In the beginning this first day, the lawyers, long-time conservative turned gay rights advocate, Ted Olson, representing the gay men and lesbians who want to marry, and long-time conservative, Charles Cooper, representing the sponsors of the anti-same-sex marriage measure, make their opening arguments. Seemingly taking renowned counsel by surprise, Judge Vaughn Walker interrupts both plaintiffs’ and defendants’ set pieces repeatedly to ask probing questions. “What if California just got out of the marriage business altogether?” he asks Olson. “How does letting gay people marry harm the institution of marriage”? he throws at Cooper.

Then, for the first time in federal legal history, a gay person, Plaintiff Jeffrey Zarrillo, tells his story. Zarrillo and his would-be spouse, Paul Katami relate their eminently respectable jobs, their realization that they were and always would be gay, their romance and their desire to marry. The lesbian plaintiffs, Kristin Perry, a child protection specialist with the state, and her partner, Sandra Stier, do the same.

Jeffrey describes Paul as “the love of my life” (p 79, line 20-21) and Kristin Perry described attending a high school football game: “and we went up the bleachers and we were greeted with these smiling faces of other parents sitting there waiting for the game to start. And I was so acutely aware that I thought, they are all married and I’m not.” (p. 155, line 25 through p. 156, line 3). Paul Katami, voice cracking audibly, revealed why he struggles, constantly trying to “validate” himself: “I’m a proud man. I’m proud to be gay.” The impact of Katami’s statement on a courtroom packed with lawyers and media, many straight and familiar with the concept of pride, was palpable.

All the plaintiffs testified that they were offended and hurt by the campaign for Proposition 8, particularly the implication that they were a threat to children. In the only cross of the day, defendants’ lawyer presses Paul Katami to admit that parents should be left alone to teach children what to think about homosexuality in general and same-sex marriage in particular.

The day ends with the plaintiffs’ first expert, Nancy Cott, an histor who had left the highest status job at Yale to go to Harvard. Cott, and expert in the history of American marriage, testifies about how marriage was always a vehicle for the government to ensure that two adults are committed to caring for one another, but that within that frame, marriage changed enormously over the centuries.



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