On one side of the court sat lawyers Ted Olson and David Boies, partisan foes in Bush v. Gore. Now the straight pair pledged to prove that same-sex couples deserved the fundamental right to marry. For them, the meaning of the U.S. Constitution is at stake.

On the other side sat Republican attorney Charles Cooper and a handful of supporting lawyers. It was what some might consider a strange sight. After the passage of Proposition 8 in California, the loss of same-sex marriage in Maine, New York and New Jersey and the gloating by ProtectMarriage affiliates such as the National Organization for Marriage, the anti-gay forces looked weak. In fact, throughout the trial, they portrayed themselves as David fighting Goliath.

Retired philosophy professor Linda Hirshman, reporting for The Daily Beast web site, pronounced the matchup a modern day Scopes trial.

“In the confrontation between an irrefutable religious standard and a worldly empirical survey, the challenge to California’s prohibition on gay marriage reveals a fissure that runs throughout American history: Are we modern or are we medieval?” Hirshman wrote. “Do Americans live together in a social contract for our material well-being, or are we following ancient traditions of how to live, because tradition is a better teacher than reason? This issue does not surface often in the United States, but it did most powerfully almost 90 years ago in Scopes vs. the State of Tennessee, the ‘monkey trial.’ And it did so again this week.”

The Scopes trial pitted the teaching of secular science and intellectual freedom against traditional Bible-based Christian fundamentalism. It’s a clash as old as St. Thomas Aquinas’ “Summa Theologiae” and as fresh as the 2005 debate over whether creationism should be taught alongside the theory of evolution in the Kansas public school system.

For Prop 8 supporters, the trial is now posited as if freedom of religion itself is at stake. In a Jan. 26 column, “Putting Religion on Trial?”, NOM president Maggie Gallagher wrote that Olson and Boies are trying to invalidate the religious beliefs of millions of voters who hold that homosexuality is a sin and marriage is a sacrament between one man and one woman.

“The stakes are high. And the argument they will be asking the Supreme Court to endorse is this: Only bigotry, hatred and unreason explains why anyone cares about the idea that to make a marriage you need a husband and a wife — religious views of marriage are just anti-gay bigotry,” Gallagher wrote.

Anti-bigotry is one of the central elements to proving the case that lesbians and gays have historically been subjected to discrimination and deserve equal protection and due process under the U.S. Constitution. Walker, the Ninth Circuit Court of Appeals and perhaps the U.S. Supreme Court will decide if the plaintiffs proved that gays are a “discrete” minority, possess an “immutable” characteristic and are powerless to protect themselves in the political process.

“We said on the first day of [the] trial we would prove three things,” Boies said at a news conference after the evidentiary trial testimony ended Jan. 26. “Marriage is a fundamental right; that depriving gays and lesbians the right to marry hurts them and hurts their children; and there was no reason, no societal benefit, in not allowing them to get married.”

Evan Wolfson, founder of Freedom to Marry, said the arguments were compelling.

“Our side powerfully showed that California’s selective stripping away of the fundamental freedom to marry from a vulnerable minority lacked any legitimate reason, and harms families while helping no one,” he said. “Fourteen years and tens of millions of dollars after our Hawaii case, the anti-gay opponents had literally nothing new to put forward to defend the discriminatory denial of marriage.”

Olson and Boies entered reams of documents into evidence and put 17 witnesses on the stand. The plaintiffs spoke movingly about their loved ones and a slew of expert witnesses contributed a wealth of knowledge to the evidentiary record.

In some cases, the testimony was almost ironic. For instance, in his opening statement, Cooper said “the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel narrowly procreative sexual activity between men and women into stable enduring unions. … [Marriage] is a pro-child societal institution.”

But Harvard University professor Nancy Cott noted that, “There has never been a requirement that a couple produce children in order to have a valid marriage. … And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile.”

ProtectMarriage only called two of their five witnesses to the stand. So Olson and Boies introduced the depositions of the dropped witnesses into evidence, which appeared to bolster the plaintiffs’ case.

New Yorker contributor Margaret Talbot wrote that Boies’ cross-examination technique “was a little like watching your cat play with his food before he eats it.”

Indeed, Boies seemed to make mincemeat of official Prop 8 proponent Hak-Shing William Tam, who was called as a hostile witness. Tam stood by claims that gays were 12 times more likely to molest children, “based on the different literature that I have read.”

ProtectMarriage called California’s Claremont McKenna College political science professor Kenneth Miller, whose credibility as an expert on gay political power was mightily challenged by Boies on cross examination. Boies also read from a book Miller co-authored that ballot initiatives or “direct democracy can actually be less democratic than representative democracy.”

ProtectMarriage’s second witness, David Blankenhorn, was so combative, the judge reprimanded his demeanor. Boies had Blankenhorn, author of “The Future of Marriage,” go down a list of “possible positive consequences” of same-sex marriage and mark the statements with which he personally agreed.

Among the many positive statement with which Blankenhorn agreed were, “gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children,” and “same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples.”

Chad Griffin, chair of the board of the American Foundation for Equal Rights, said he was thrilled that the trial put “those who attempt to provide justification for discrimination” under oath for the first time.

“I think they found in a court of law, it’s quite different from on a political campaign where you can say anything and get away with it,” Griffin said. “In a court of law, you’re under oath and you actually have to tell the truth — and you have to answer to those truths under oath. And I think that proved difficult for the defendant-interveners in this case.”

I wonder if the opening minutes of Tuesday’s federal Proposition 8 trial in San Francisco will be business as usual — or if the participants and observers will acknowledge the profound irony of having a federal holiday honoring Martin Luther King Jr. the day before.

Yusef Robb, spokesperson for the American Foundation for Equal Rights, says the witness list lineup for Tuesday’s session includes San Diego Mayor Jerry Sanders and University of Massachusetts professor M.V. Lee Badgett.

I confess, I had never really heard of Sanders until his name came up in connection with a city council resolution to have the city attorney file an amicus brief in support of the marriage equality case. I confess, too, that once I heard he was a major law enforcement Republican in that very conservative city, I didn’t hold out much hope for him agreeing to the brief, especially since he was up for re-election.

Slap my wrist and shame on me for stereotyping before investigating.

Sanders gave a news conference that surprised the hell out of the LGBT community — tearfully telling how he had to support marriage equality because he didn’t want anything less for his lesbian daughter and her girlfriend. We panted for that video which we played and re-played, some of us wondering with tears streaming down our faces if our fathers would put their careers on the line to stand up for us.

M.V. Lee Badgett is a professor of economics at the University of Massachusetts Amherst. Those of us in Southern California know her as one of those extraordinary experts associated with the Williams Institute at the University of California Los Angeles’ School of Law.

Robb said Badgett will testify “about the private harms and public costs caused by Prop 8, differences between marriage and domestic partnership, and the impact of same-sex marriage on the marriages of different-sex couples.”

Presumably, she will include information researched for her new book, “When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage.” She’s notably written a piece for Slate and was interviewed by The New York Times.

Robb says another witness slated for today, Ryan Kendall, is a gay man who was subjected to “conversion therapy” in his youth. He will testify about how sexual orientation discrimination and “conversion therapy” affected him.

This will hopefully get in information about so-called “reparative therapy,” which has been disavowed by the American Psychological Association. At an APA convention last year in Toronto, Judith Glassgold, chair of the APA’s task force examining the issue said:

Contrary to claims of sexual orientation change [by its] advocates and practitioners, there is insufficient evidence to support the use of psychological interventions to change sexual orientation.

Scientifically rigorous older studies in this area found that sexual orientation was unlikely to change due to efforts designed for this purpose. Contrary to the claims of [sexual orientation change efforts] practitioners and advocates, recent research studies do not provide evidence of sexual orientation change as the research methods are inadequate to determine the effectiveness of these interventions.

At most, certain studies suggested that some individuals learned how to ignore or not act on their homosexual attractions. Yet, these studies did not indicate for whom this was possible, how long it lasted or its long-term mental health effects. Also, this result was much less likely to be true for people who started out only attracted to people of the same sex.

Nonetheless groups such as NARTH and Exodus International continue to operate.

It seemed that everyone’s nerves were on edge on the first day of the historic federal challenge to California’s Proposition 8 in the San Francisco district courthouse, just a block or so away from where all those thousands of jubilant couples married illegally in 2004 at City Hall.

All this amid a compliment from the San Francisco mayor who helped make the marriage issue matter: @GavinNewsom Hats off to David Boies & Ted Olson for their effort to overturn Prop 8.

Many Twitter users are following the trial as it happens, including

You can follow these Tweeters live during the trial, per Eden James from the Courage Campaign: Ilona Turner of National Center for Lesbian Right at @ilona, American Foundation for Equal Rights at @AmerEqualRights, the American Civil Liberties Union of Northern California at @ACLU_NorCal and the Courage Campaign at @CourageCampaign.

There has been a lot of good reporting on today’s trial — especially from Associated Press reporter Lisa Leff and Courage Campaign founder and blogger Rick Jacobs, whose work I discuss in more detail below.

So I’m going to write about some of the aspects of today’s trial that haven’t really been written about.

At 6:30 a.m. Monday, Molly McKay and Marriage Equality USA lead a rally in the freezing darkness outside the courthouse, as if to say that the marriage equality movement is ushering in a new dawn.

There was only one sign saying marriage is between one man and one woman, notably held by two men.

Leff, on her cell phone, broke the big news of the morning to journalists and bloggers hanging outside the courtroom on the 17th floor: the U.S. Supreme Court denied a request to broadcast the trial. The Court also prohibited the transmission outside the San Francisco federal court. A number of us worried about the many people that were on their way to district courts that had been designated as viewing areas.

I asked Chad Griffin, president of the board of the American Foundation for Equal Rights, which is sponsoring the lawsuit, if they would post the trial transcripts on their web site. He said: “Anything we are allowed to do, we will do.” With Adam Umhoefer and Yusef Robb on top of their communications, I think they will post as much as they are legally able to. And the AFER team has been very strong in their support for public access to the hearing.

That’s also been the Courage Campaign’s most recent push and to illustrate the point, Jacobs brought more than 140,000 comments from people seeking access to the hearing. Jacobs, for his part, stepped up and live-blogged the first day of the trial after it became apparent there were virtually no transmissions out of the hearing room. In fact, they created a logo parodying Yes on 8 for a new blog titled Prop8TrialTracker.com.

After the introduction of all the lawyers, Judge Vaughn Walker took note of the Supreme Court ruling by Justice Anthony Kennedy, which specified the high court would make further comment Wednesday. But the issue of broadcasting the trial “was resolved for the moment.”

Walker went on to “clarify” a couple of points: First of all, the content would be posted on the Northern District web site, not Google/YouTube. Google/YouTube is just the conduit for posting, just like on the White House web site. “That service would be used here in exactly the same manner.” It seemed like he might have been sending a signal to the Supreme Court about opening up government to its citizens.

Walker then said that he received “a substantial number of comments by 5 p.m. Friday — 138,574,” with the overwhelming majority in favor of the rule change; 32 comments were opposed. People laughed. He said the uproar, however, was “very helpful,” noting that it is “highly unfortunate” that the courts have not dealt with the issue of public access in the past. “Finally, after some 20 years, we’ll get some sensible movement forward,” Walker said.

I noted the disparity in numbers between those announced by Jacobs and Walker — but it might only matter if the open government advocates need to rally to yell at the U.S. Supreme Court if they ban cameras altogether.

Theodore Boutrous Jr., a partner in Gibson Dunn, the law firm representing the plaintiffs, asked if the transmission fed within the courtroom could be recorded and preserved so that if the high court ruled that it was allowable to broadcast or post the opening remarks of lead plaintiff’s counsel, Olson, and lead defense counsel, Charles Cooper, as well as the first couple of days of the trial, that recording would be available. After some legal hemming and hawing, Walker said the hearing would be recorded.

I was suddenly struck by how sad and demoralized the Prop 8 side looked. Olson, David Boise and their team of lawyers, as well as San Francisco City Attorney Dennis Herrera and Deputy City Attorney Therese Stewart, who argued the marriage case with Shannon Minter before the California Supreme Court, sat on the right side facing the judge with two long rows of thick binders behind them. There were also rows filled with other counsels; plaintiffs Kris Perry and Sandy Stier and two of their children, and Paul Katami and Jeff Zarrillo; AFER board members Chad Griffin; Hollywood producer Bruce Cohen and his husband Gabe Catone; LGBT activist Cleve Jones; screenwriter Dustin Lance Black; actor and director Rob Reiner; and other AFER supporters. Behind them sat “members of the public” who had lined up to get an open seat. There was also a public “overflow room” two floors up.

On the left side facing the judge sat the legal defense team, with Cooper as lead attorney for ProtectMarriage.com and two attorneys for the Alliance Defense Fund. Behind them were not rows of thick folders but a row of attorneys for California Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, and other attorneys for the defense. They had a table with two women on computers and one row of possible supporters. They appeared as though they were making motions to look busy rather than actually doing anything. At the break, Stewart told me that two or three of their witnesses had dropped out that morning. That might explain the pall that hung over that table. And throughout the day, Cooper and the other lawyer for the Alliance Defense Fund kept promising that their expert, David Blankenhorn, would explain everything to the judge, who kept asking for evidence about how each side would prove their contentions.

Blankenhorn, you might remember, is the “liberal Democrat” president of the Institute for American Values, who shared a New York Times op-ed on gay marriage with the openly gay Jonathan Rauch, a guest scholar at the Brookings Institute. In a Sept. 19, 2008, Los Angeles Times op-ed, he said:

“Marriage is society’s most pro-child institution, recognized through history and a myriad of cultures.”

That was Cooper’s mantra: marriage equals protection of children.

There were surprising moments from him and his Republican colleague, Olson. After going on about how gays and lesbians have all this political power — referring to the legislature, the unions, the newspapers, Hollywood — Cooper acknowledged that public attitudes have changed from the days of Proposition 22 to Proposition 8, but no one can predict what will happen in the future, so we shouldn’t rush ahead. It was another twist on the effective yes on Prop 8 “consequences” argument that since marriage is so new, we don’t know what might happen as marriage is “de-institutionalized.”

Cooper also made the “activists judges” argument, noting that the Constitution’s 14th Amendment doesn’t take the definition of marriage out of the hands of the people. Besides, he said, Californians have been “very generous with gays.” And even President Barack Obama has said marriage should be between a man and a woman.

But then, as if to painfully underscore how scattered, repetitious and at times inadvertently amusing Cooper’s opening statement was, Walker reminded him that just moments earlier in his opening statement, Olson noted that Obama’s parents couldn’t get married in Virginia because of bans on interracial unions.

Cooper replied that “race has never been a restriction” enshrined in marriage. Some of us were dumbfounded.

He went on to explain that race is not a restriction to the definition of marriage — that a man and a woman get married to procreate. And echoing Blankenhorn, Cooper said marriage is a pro-child institution, which is far more important than love, emotional support and companionship.

To finalize his point, Cooper asserted that the landmark civil rights case that ended race-based discrimination in marriage based on the 14th Amendment, Loving v. Virginia, was only about race and not marriage. Therefore, the 14th Amendment’s Equal Protection Clause does not apply to same-sex marriage.

As the trial ended Monday, the witness on the stand, Harvard University professor and history scholar Nancy Cott, whose opening statement was “what a capacious institution [marriage] is,” really zinged Cooper.

In his opening remarks, Cooper said the limitation of marriage to the unions of one man and one woman is something that is universal throughout history and different cultures. Cott, in her very professorial way, said she was “amused” when she heard Cooper say that because “the Bible is a situation in which characters practice polygamy.” She said his statement was “inaccurate.”

In an interesting juxtaposition to Cooper’s analysis of race and marriage, Cott also talked about the Scott v. Sandford decision and how for slaves, the ability to get married was the mark of a free man.

Boutrous said he had another hour of questions, and then she’d undergo cross-examination, which was expected to get nasty.

But the highlight of the trial Monday was the powerful and moving testimony of the four plaintiffs under the gentle questioning of Boies, each describing their willing-to-die-for love of their partner, the “harm” done to them individually and as a couple by the discrimination caused by their relationship’s different status, and how domestic partnerships was humiliating and just not good enough. At times, they each choked up and paused, causing some people in the gallery to choke up, too. But perhaps most moving was how the two teenage sons of Kris and Sandy cried openly as Kris testified about her love for Sandy and for them.

Olson’s opening remarks were powerful and so on point, it was just breathtaking to hear these words spoken by the former solicitor general for President George W. Bush. Olson was repeatedly interrupted and questioned by Judge Walker — so much so one that observer wondered if Walker had already written his decision and was trying to steer both plaintiff and defense counsels toward answering questions he needed to address. But if nothing else, we certainly learned that Walker would be a very engaged judge, which, with his deep clear voice and mischievous sense of humor, should make the trial very interesting.

AFER has posted Olson’s opening comments for all to read. Before you read them in their entirety, though, consider the closing portion of his remarks:

At the end of the day, whatever the motives of its proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the plaintiffs, are prohibited from marrying by Proposition 8.

There is no rational justification for this unique pattern of discrimination. Proposition 8, and the irrational pattern of California’s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal, and disfavored. And it brands their relationships as not the same, and less-approved than those enjoyed by opposite sex couples. It stigmatizes gays and lesbians, classifies them as outcasts, and causes needless pain, isolation and humiliation.

The trial in the case of Perry v. Schwarzenegger will begin Monday. Judge Vaughn Walker of the U.S. District Court’s Northern District of California will preside and has called for expedited proceedings because of the serious nature of the complaints raised by plaintiffs.

During the trial, Walker will consider witness testimony, documents and other evidence and arguments from both sides over the constitutionality of Proposition 8, an amendment to the state constitution banning same-sex marriage. The amendment was approved in 2008 through voter referendum.

Attorneys Ted Olson and David Boies are representing plaintiff couples that were denied marriage licenses in California because of the state’s ban on same-sex marriage.

While it’s the first time these lawyers have worked together on a case, they have crossed paths before in opposition to each other. In the 2000 case of Bush v. Gore, Olson represented then-Republican presidential nominee George W. Bush while Boies represented then-Democratic presidential nominee Al Gore.

Olson and Boies — who are litigating on behalf of the American Foundation for Equal Rights, a California-based LGBT organization founded last year — are arguing Prop 8 is unconstitutional because it violates the Equal Protection Clause of the Fourteenth Amendment and singles out LGBT people for discrimination, among other reasons.

Yusef Robb, an AFER spokesperson, said, “preparations are intense” for the legal team that is arguing that Prop 8 is unconstitutional.

“Proposition 8 is wrong and it’s unconstitutional, and we will demonstrate that through the testimony of our plaintiffs, expert [witnesses], evidence and arguments from an unmatched legal team,” he said.

Robb said the trial should last about three weeks, but could drag out for five weeks. Supporters of the lawsuit are expecting the case to go to the U.S. Supreme Court, but first the case would have to be heard in the Ninth Circuit Court of Appeals.

Geoff Kors, executive director of Equality California, said the case is significant because “it’s a critical piece in the ongoing fight for full equality.”

“We are extremely hopeful that the federal courts will strike [down] Prop 8 as unconstitutional because it clearly violates the federal Constitution, especially in light of the California Supreme Court decision that upheld Prop 8 in the California Constitution,” he said.

Equality California was among the groups that filed a “friend-of-the-court” brief in favor of overturning Prop 8. Kors said he’s confident Walker will overturn Prop 8 because it’s “a clear violation of the United States Constitution.”

Other groups that have filed “friend-of-the-court” briefs are the American Civil Liberties Union, Lambda Legal and National Center for Lesbian Rights. The City and County of San Francisco — under the leadership of City Attorney Dennis Herrera and Chief Deputy City Attorney Therese Stewart — are supporting the plaintiffs as co-counsel and are focusing on the negative impact Prop 8 has on government services and budgets.

While the case is focused on the constitutionality of Prop 8, it’s possible that marriage bans throughout the country could be struck down if the case goes to the Supreme Court and it rules in favor of the plaintiffs.

Robb said the question of whether a Supreme Court ruling would end marriage bans throughout the country “would depend on the particular issues the court chooses to review, as well as how they specifically draft their opinion.”

One contentious issue leading up to the trial was whether the judge would allow TV cameras in the courtroom to record and broadcast the trial.

Opponents of Prop 8 urged Walker to allow proceedings to air on TV to bring more attention to the marriage issue, while supporters of Prop 8 are arguing against such a move because they feel backers of the amendment would be subject to harassment and intimidation.

Walker ruled Wednesday that the trial will be recorded — but the broadcast will be delayed and it will air on the Internet and not live TV, according to media reports.

Walker decided to post a delayed recording of the case challenging Proposition 8 on YouTube, according to the The San Francisco Chronicle. AFER announced the decision in a Twitter posting: “Judge: pending approval from 9th Circuit, trial will be recorded daily for delayed posting to internet.”

Robb said AFER believes it’s important for the trial to air to show the harm that Prop 8 has caused same-sex couples.

“This trial is a chance for the true harm of Prop 8 to be revealed through facts, evidence and the law, without the spin, slogans and deception that dominate political campaigns,” he said. “These proceedings should be available to as many people as possible.”

Kors also supports airing the trial. He said the broadcast would allow people who are undecided on same-sex marriage to learn more about why marriage rights are important to LGBT people.

“It’s an opportunity for them to see us for who we really are, and for them to hear the arguments both from our side about why equality is so important and why denying us the freedom to marry harms us and our families, and to really hear what the right-wing’s justification for that discrimination is,” he said.

Kors also claimed that airing the trial would reveal that supporters of Prop 8 distorted the truth during the 2008 campaign as they encouraged voters to approve the amendment.

Among the disputed arguments that supporters of Prop 8 put forward was that failure of the amendment would mean that children would have to learn about same-sex marriage in public schools.

“It’s different when you’re arguing in court and testifying under oath than it is when you run a 30-second television ad that tells lies,” he said. “So it’s a chance for people to hear the truth from both sides, which is why we want it to be televised and clearly why the right-wing doesn’t because it’s not an environment where they can control what they’re saying.”

While predicting that the trial court would strike down Prop 8, Kors said it’s possible that the ruling could be overturned by a higher court.

But if that happened, Kors said the trial court proceedings would still be helpful in persuading the public to overturn the amendment at the ballot box. Equality California has chosen 2012 as the year to challenge Prop 8 through another voter referendum.

“It’s an opportunity for the public to learn more about why marriage equality is so important for same-sex couples and their families — and that the lies the right-wing told in California and more recently in Maine are nothing but lies,” Kors said. “And that, I think, is going to be really important in moving public opinion.”