Prop 8 Update.

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    Oct 15, 2009 5:05 PM GMT
    Calif. Federal Judge's Ruling Helps Same-Sex Marriage Advocates in Latest Challenge to Prop 8
    Dan Levine

    The Recorder

    October 15, 2009

    Ever since the federal challenge to Proposition 8 was filed, Northern District of California Chief Judge Vaughn Walker has been leading the parties toward an early trial. On Wednesday, he didn't loosen the leash a bit.

    Walker swept aside attempts by Prop 8 supporters to knock out the case on summary judgment. His ruling, delivered from the bench, came just an hour after argument on the motion had concluded. Walker and two U.S. Supreme Court-hardened lawyers sparred on key issues expected to affect the outcome of the case, and on each of them, his ruling helps same-sex marriage advocates more than it hurts them.

    He made quick work of the summary judgment motion, finding that U.S. Supreme Court precedent does not preclude a fundamental right to marriage under the due process clause. And Baker v. Nelson -- a 1972 decision in which the high court, without comment, upheld an opposite-sex marriage statute in Minnesota -- isn't on point, he said.

    Importantly, Walker also turned aside defense requests to install rational basis as the proper level of scrutiny for equal protection claims. Nothing in Supreme Court precedent prohibits heightened scrutiny for gay individuals, he said.

    "These, I think, are prime issues for trial," Walker said.

    After the ruling, Yes on 8 attorney Charles Cooper said he was "disappointed the judge didn't see this motion our way." Chad Griffin, president of the foundation that spearheaded the suit on behalf of same-sex couples, said his side was "thrilled."

    During the hearing, Cooper argued that the state could rationally choose to encourage procreation by banning same-sex unions. The state also has the right, he said, to proceed cautiously with the gay-marriage experiment and assess how it is working in other states before taking the plunge.

    "If the state has any rational or reasonable purpose, I have to win," he said.

    But Walker was skeptical of the procreation argument, saying the last marriage he performed was for an elderly couple. "I did not require them to prove they engaged in procreative activities," Walker said, prompting laughter.

    Another light moment came when same sex-marriage attorney Theodore Olson of Gibson, Dunn & Crutcher said Cooper's argument mirrored the comments of U.S. Supreme Court Justice Antonin Scalia in cases like Lawrence v. Texas. In Lawrence, Scalia had mocked his colleagues for invalidating a sodomy law.

    "But those were dissenting opinions," Olson said.

    "Perhaps it shows why judges shouldn't write a dissenting opinion," Walker responded.

    "It hasn't stopped Justice Scalia!" Olson rejoined.

    Later on, Cooper said he wished Scalia hadn't written that dissent, because Cooper now had to separate himself from its reasoning: namely, that the Lawrence majority had opened the door to gay marriage. Cooper admires Scalia very much, he said.

    "Well, that makes three of us," said Walker, gesturing to Olson.

    In ruling, Walker noted that even if homosexuals do not possess a right to marriage under the U.S. Constitution, Prop 8 could still be invalid in California because it took away rights that had already been granted here.

    And he gave the Yes on 8 defendants an ominous read on scrutiny. Two of the four factors that dictate whether higher scrutiny should apply had already been conceded by Yes on 8, and Walker noted that all four factors need to be weighed together, not separately.

    In an illustration of the stakes involved in that issue, Walker posited a hypothetical during argument: Assuming he agrees with Cooper that the state has an interest in furthering procreation, how does permitting same-sex couples to marry adversely affect that?

    After some back and forth, Cooper eventually conceded: "The answer is, I don't know. I don't know."

    "Does that mean if it's not rational basis review, you lose?" Walker asked.


    "You just haven't figured out how to win on that level," the chief judge surmised.

    After Walker's ruling, the two sides tried to sort out how a discovery wrangle would affect the Jan. 11 trial date. Olson warned that delays may lead his side to reopen a request for an injunction against Prop 8, because Walker had previously used the early trial date as his justification for denying such a stay.

    Walker called Olson's prospective gambit "a fair point," and Cooper promised to file papers on the discovery matter quickly.

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    Oct 16, 2009 5:57 AM GMT
    Wooooow, I so enjoyed reading that. Thank you for sharing,