Federal judge moves to fast track legal fight over Proposition 8 - San Jose Mercury News

Federal judge moves to fast track legal fight over Proposition 8 - San Jose Mercury News

By Howard Mintz

Mercury News
Posted: 07/02/2009 12:04:57 PM PDT
Updated: 07/02/2009 10:07:48 PM PDT




SAN FRANCISCO — A federal judge Thursday refused to temporarily block Proposition 8, moving forward with his plan to put the latest legal challenge over California's gay marriage ban on a fast track to a trial that is likely to produce the most thorough review to date of whether same-sex couples have a constitutional right to marry.

With all sides in the legal battle poised for a fight all the way to the U.S. Supreme Court, Chief U.S. District Judge Vaughn Walker agreed with Attorney General Jerry Brown and Gov. Arnold Schwarzenegger, concluding that it would cause too much confusion across California if he chose to suspend Proposition 8 while the challenge to the voter-approved gay marriage ban unfolds in the courts. Brown has nevertheless sided with gay marriage advocates on the overall lawsuit, agreeing that Proposition 8 violates the federal equal protection rights of gay and lesbian couples by denying them the ability to marry.

Walker told a packed courtroom that his job is to establish a full record on the legal tangle over gay marriage because he will not be the final word in a case that many legal experts believe will force the U.S. Supreme Court to address the issue.

"What happens here is only a prelude to what is going to happen later," Walker said.

Backed by a high-powered legal group headed by former Republican U.S. Solicitor General Theodore Olson, two gay couples sued in May to overturn Proposition 8, shifting the
Advertisement
legal fight over gay marriage in California to the federal courts. The California Supreme Court in May upheld Proposition 8, concluding that it did not have the legal authority to overturn the voter-backed amendment to the California Constitution.

The justices still refused to invalidate an estimated 18,000 same-sex marriages that took place before Proposition 8 went into effect last November, in the aftermath of a previous state Supreme Court ruling declaring prior laws outlawing gay marriage unconstitutional. The latest lawsuit argues that Proposition 8 violates federal equal rights laws for couples now unable to marry and was adopted to discriminate against gays and lesbians.

With Brown backing the plaintiffs and Schwarzenegger remaining neutral on the constitutionality of Proposition 8, gay marriage foes are alone defending the law, although they've enlisted high-powered legal help as well. Charles Cooper, a former top Justice Department official during the Reagan administration, is leading the Proposition 8 defense, warning that the lawsuit threatens "the common definition of marriage in the laws of 43 states and the federal government."

Walker gave lawyers on both sides until early August to sort through the factual issues in order to establish a framework for a trial that could take place by the end of the year. In an order earlier this week, Walker envisions an expansive, unprecedented exploration of the civil rights challenge over gay marriage, ranging from the history of discrimination against gays to arguments over the impact of same-sex marriage on traditional marriage and child-rearing.

In the meantime, Olson expressed concern about Proposition 8 continuing to remain in effect, despite the fact he will not contest Walker's denial of a preliminary injunction.

"Every day Prop. 8 is in force perpetuates a tragic injustice on tens of thousands of Californians," Olson said in court.