For Californians, Prop. 8 hearing is milestone in years-long saga

The mood was electric that crisp, clear February day as couples lined up at San Francisco City Hall to be among the first to get licenses for same-sex marriages in California.

Nine tortuous years followed: The state high court halted and invalidated the San Francisco licenses, then later ruled gays and lesbians could marry. Some 18,000 couples rushed to do so before voters put a stop to the ceremonies by passing Proposition 8 in 2008. Then a federal judge and an appeals court threw that ballot initiative out.

On Tuesday, the two sides rested. The fate of one of the nation’s most divisive issues was now in the hands of the U.S. Supreme Court.


The nine justices will decide whether Proposition 8 — which amended the state Constitution to define marriage as between a man and a woman — will stand as law in California.

Californians on both sides listened to Tuesday morning’s oral arguments and were handicapping how the court would rule based on the justices’ queries. They held rallies and vigils, and talked it over in taverns, coffeehouses and law offices.

Andy Pugno, a lawyer in Folsom who has fought against same-sex marriage for 17 years, recalled his “long and difficult journey getting to this point.”

Hearing Tuesday’s arguments was “a surreal experience, having started out with this issue at a time when very few people realized that it would become an intense debate.

“And then fast forward 17 years to where it is perhaps the most intense social issue in the country.”

Pugno was a legislative aide who worked on Proposition 22, the 2000 ballot measure that defined marriage as a union of one man and one woman, a law the California Supreme Court overturned. Pugno served as legal counsel for the sponsors of Prop. 8.

“It has been very difficult on me, my family and my business,” Pugno said. “I have received an awful lot of mean-spirited threats and insults from some same-sex marriage activists.”

He said he remains optimistic that the court will uphold Prop. 8.

Lt. Gov. Gavin Newsom, the former mayor of San Francisco who launched this legal odyssey, sat in on the arguments and came away with the sense that same-sex marriages would resume in June in California.

Newsom said many people, including his father, a Catholic, and some friends and political allies, condemned him for deciding to issue the marriage licenses to same-sex couples in February 2004.

“There’s a lot of wounds, a lot of scars,” he said. “Those were difficult years and lonely.”

Still, he said, he looks back on his decision with pride. The weddings on the steps of City Hall put a human face on the issue. Elated same-sex couples with children and parents in tow popped champagne and hugged under showers of rice. Drivers honked in celebration.

“Those images of the people on the steps of City Hall had an impact,” Newsom said. “They reminded people that this was not a legal brief, but civil rights.”

Kate Kuykendall, 36, needs no reminder of that. When she came out to her family in her early 20s, she feared she would never be able to get married and have a family of her own.

“When I reflect on how much things have changed in 20 years, it’s pretty astounding,” she said.

She married Tori Wilson on the first day of the five-month period in 2008 when gay marriage was legal in California, and they live in Agoura Hills with their three children.

“We made it during that limited-time offer,” she said.

They never lose sight of the issue’s importance to them. A local boy recently threw a rock through their window and scrawled an epithet on their sidewalk. And when Tori lost her job, she could not go on Kate’s health insurance because Kate was a federal employee and the Defense of Marriage Act (which will be argued Wednesday before the Supreme Court) prohibited it.

Now she is just waiting to see what happens with “excitement and trepidation,” and hopes for a ruling that leads to “broader acceptance.”

John Gallegos, 56, of South Gate, voted for Proposition 8 but now supports gay marriage.

“I think maybe I just voted for it because of my upbringing,” he said. Gallegos, 56, grew up Catholic in East L.A. but no longer practices. He said raising a severely autistic son opened his eyes to the value of differences. “You can’t put things in a box or think of things only in black and white,” he said.

Gallegos, who was raised by his aunt and uncle, says he thinks his gay friends could do just as well as parents.

His wife disagreed. “I think marriage is supposed to be between a man and a woman,” said Maria in Spanish, attributing her beliefs mainly to her Catholic faith.

Others expressed a more gut-level feeling. Woody Whittaker of Los Angeles, 64, said he just doesn’t like the idea of homosexuality. “I’m dealing more emotionally,” he said.

The passion in this debate still sometimes surprises Ronald M. George, the now-retired California chief justice who wrote the 2008 ruling that gave same-sex couples the right to marry. He said strangers still approach him on the street and in restaurants to thank him for the marriage decision.

“It is rather amazing to me that so many of them do,” he said. “I have had people even now, in 2013, come up and thank me, sometimes very warmly, for the decision.”

George also wrote the 2009 ruling that upheld Proposition 8. He said it was unfortunate that the measure passed, but that “people have the right to amend their Constitution.”

After that ruling, Proposition 8 opponents took their fight to federal court, where U.S. District Judge Vaughn R. Walker’s decision to overturn the measure put the case on a path to the Supreme Court.

The 69-year-old retired judge, now in private practice in San Francisco, was busy mediating a business dispute Tuesday morning but was going to listen to a recording of the arguments and read a transcript later.

“I have another life now, a new life,” Walker said.

But he said the case is often on his mind.

“One gets reminded of this all the time,” he said. “It is the case that keeps on giving.”

Walker became a lightning rod when it was revealed that he was gay — a fact already well-known in the courthouse. Proposition 8’s sponsors said he should have recused himself.

He wouldn’t discuss the ongoing litigation, citing the “hubbub over my personal life.”

“I have done my part. I sent the case off to the Court of Appeals, and now it’s in the hands of other people.”

Key among them is Justice Anthony M. Kennedy, who many observers say is likely to cast the deciding vote. At one point during the hearings Tuesday he expressed concern that upholding Proposition 8 would brand the families of nearly 40,000 children in California as second-class.

Spencer Cohen was 6 in November 2008, when his mothers, Susan Cohen and Nikki Bauer, got married at their temple.

Spencer said he hoped the judges would find that Proposition 8 was not constitutional, so people “who love can be married.”

But he also seemed slightly mystified by the debate. “They’re normal people,” he said of same-sex couples. “They’re equal. And it wouldn’t be very fair if they can’t [marry]. It’s discrimination.”

His mother Bauer said she took heart that Spencer and his friends were so unmoved by the great debate raging around them. “That’s the beauty,” she said. “To children this is normal. It’s like, yeah, what’s the point.”

Dolan reported from San Francisco, Garrison and Mozingo from Los Angeles. Times staff writers Christine Mai-Duc, Marisa Gerber, Ruben Vives and Anh Do contributed to this report.