Being gay went on trial Monday in San Francisco.
Opening statements kicked off a highly anticipated proceeding in the federal challenge to Proposition 8, followed by emotional testimony from the four name plaintiffs in the case. The two couples talked about when they first knew they were gay, what it was like to come out, how anti-gay bias makes them feel, and what marriage means to them.
Plaintiff Paul Katami, a gym manager in Los Angeles, described attending his first gay event in college, and being pelted by rocks and eggs on an outdoor patio.
"I can't speak as an expert, I can speak as a human being who lived it," Katami said.
His partner, Jeffrey Zarrillo, choked up when he described Katami as the love of his life.
"The word marriage has a special meaning. That's why we're here today," Zarrillo said. "I want to share the joy and happiness that my parents felt."
Before the testimony, Chief Judge Vaughn Walker offered a hint of his approach by interrupting both Gibson, Dunn & Crutcher partner Theodore Olson and Cooper & Kirk's Charles Cooper with questions during their opening statements -- much like an appeals court judge would.
"Could the state get out of the marriage license business?" Walker asked.
"Yes, I believe it could," Olson replied.
That was a point to which Walker would return during testimony. In fact, it was the only substantive question that he posed all day.
"Wouldn't that put you on the same plane as others who have the same relationship, even though they are of the opposite sex?" Walker asked.
"I believe it would," replied plaintiff Sandra Stier.
A crowd of pro-same sex marriage demonstrators chanted on the plaza outside the federal building on Golden Gate Avenue before the proceedings began, but the mood inside Walker's packed courtroom was serious. There were no outbursts, and often the only sound coming from the spectators was the continuous click of reporters typing on laptops.
The day started off with a bit of drama from the U.S. Supreme Court, where Justice Anthony Kennedy stayed Walker's order to post video of the trial online. Kennedy indicated that the full court may rule by Wednesday afternoon. Walker spent only a few minutes cleaning up the record on cameras, spelling out exactly how the Northern District of California changed its local rules. Walker said the court had received 138,542 comments in favor of cameras, and only 32 against it.
Moments later, Walker asked Olson why gay marriage shouldn't just be left to the voters. "Why shouldn't the courts just stand back and let this develop?"
"Because that is why we have courts," Olson replied. "That is why we have a Constitution."
Cooper hammered the opposite point.
"Attitudes do change, but that's a political process, and not you, not the members of the 9th Circuit and not even justices of the Supreme Court are here to reflect the attitudes of the American people," he said. "That's what they have ballot booths for."
Cooper and his team didn't challenge the personal testimony offered by the four name plaintiffs.
Indeed, they only cross-examined Katami, and then focused on his characterization of television ads which exhorted voters to protect their children by supporting Prop 8.
Brian Raum of the Alliance Defense Fund tried to frame those ads as not anti-gay, but in favor of allowing parents to morally instruct their children as they see fit.
"Nothing in this ad says to protect children against you because you're bad, right?" Raum asked.
"This ad does not literally say that," Katami said, adding that it makes the insinuation.
The two couples chosen as name plaintiffs offer a cross-section of potential legal issues. The female couple has kids, the men don't. The women are registered as domestic partners, the men aren't.
The day ended with direct testimony from Nancy Cott, a Harvard historian who is an expert in the institution of marriage. In supporting the view that marriage is a civil right, Cott described how American slaves were denied permission to wed because they could not consent.
Her testimony continues Tuesday at 8:30 a.m. PST.