Wednesday, August 19, 2009

January trial set for U.S. court challenge to California's gay-marriage ban - San Jose Mercury News

January trial set for U.S. court challenge to California's gay-marriage ban - San Jose Mercury News

By Howard Mintz
Posted: 08/19/2009 12:28:56 PM PDT
Updated: 08/19/2009 12:56:58 PM PDT

A federal judge today set a Jan. 11 trial date for the legal challenge to Proposition 8, setting the stage for the most exhaustive legal review of a state's ban on gay marriage in any court in the nation.

During a hearing in San Francisco, Chief U.S. District Judge Vaughn Walker ordered lawyers on both sides of the case to gear up quickly for the trial, which foes of California's same-sex marriage ban hope will be the first step in getting the legal fight over gay marriage to the U.S. Supreme Court.

Backed by former U.S. Solicitor General Theodore Olson and prominent lawyer David Boies, two same-sex couples sued in federal court this past spring to overturn Proposition 8, approved by voters in fall 2008 to restore California's ban on gay marriage. The lawsuit maintains Proposition 8 violates the federal constitutional rights of gay and lesbian couples by denying them the equal right to marry, and marks what is likely to be the first crucial legal test in the federal courts over the issue.

The California Supreme Court this past spring upheld Proposition 8, which amended the California Constitution to outlaw same-sex marriage, but the justices left intact an estimated 18,000 gay marriages that took place last year before voters approved the measure by 52 to 48 percent. Those weddings took place after the state Supreme Court struck down the state's previous laws banning same-sex marriage.

In today's hearing, Walker refused to allow a coalition of gay rights groups to directly join the lawsuit, concluding that the current plaintiffs can adequately mount a challenge to Proposition 8 on their own.

The plaintiffs had urged Walker to deny the groups' request, still miffed that those organizations originally opposed taking the legal fight over gay marriage into the federal courts at this point. The groups include the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights, which have led the legal fight over gay marriage in state courts around the country, but worry about how the conservative U.S. Supreme Court might rule on the issue.

Walker also rejected a bid by the conservative Campaign for California Families to join the case to defend Proposition 8, finding that Proposition 8 supporters can defend the law alone. California Attorney General Jerry Brown, who has argued the law is unconstitutional, is not defending the law, nor is Gov. Arnold Schwarzenegger, who has taken no position.

Walker took a swipe at Schwarzenegger's position at the conclusion of today's hearing, saying, "I must say I'm surprised at the governor's position in this case. "... This is a matter of some importance to the people of the state."

The governor's lawyer declined to comment on the judge's remarks after the hearing.

The judge did permit the city of San Francisco, which has led the legal fight over California's marriage laws, to join the case, and indicated the other groups can present their legal arguments through friend-of-the court briefs.

The January trial is likely to be the first step in a long process before the Proposition 8 challenge can reach the Supreme Court. Even after Walker decides the case, it is certain to be appealed to the 9th U.S. Circuit Court of Appeals some time next year, and that court could take months or longer to rule

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