"Judges, even of older generations, recognize where this country is going and recognize not only the undesirability but the futility of trying to preserve this area of discrimination," he said.
Even if his side loses, "that is not the last word on a constitutional question like this," Boies said.
The California Supreme Court ruled in May 2008 that the state's ban on same-sex marriage violated the state Constitution. Proposition 8 amended the state Constitution six months later and reinstated the ban. The state high court later ruled 6 to 1 that the measure was a valid constitutional amendment but unanimously upheld the validity of the marriages of same-sex couples who wed before Proposition 8 passed.
Two same-sex couples, expecting the state court to uphold the measure, filed the federal suit in San Francisco a few days before the state ruling. Unlike the state challenge of Proposition 8, the federal lawsuit contends that the measure violates federal constitutional guarantees.
The Proposition 8 campaign intervened in the case after Gov. Arnold Schwarzenegger and Atty. Gen. Jerry Brown declined to defend the ballot measure. One of the campaign sponsors who intervened asked Walker on Friday to drop him as a defendant. He said he feared for his and his family's safety.
The sponsor, Bill Tam, had tried to attract votes for Proposition 8 by arguing that same-sex marriage would lead to children becoming homosexual and other states falling into "Satan's hands." A decision on whether Tam can withdraw from the case is pending.
maura.dolan@latimes.com
