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Anti-Prop 8 lawsuit OK, federal judge says
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Anti-Prop 8 lawsuit OK, federal judge says

by Mike Andrew - SGN Staff Writer

US District Judge Vaughn R. Walker ruled on Wednesday, October 14, that a federal lawsuit to overturn California's Prop 8 may go to trial.

After hearing two hours of oral argument, Walker rejected a motion to dismiss Perry v. Schwarzenegger - which argues that Prop 8 violates the 14th Amendment to the US Constitution.

Speaking from the bench, Walker said that two key issues in the case - whether or not Prop 8 "discriminates on the basis of gender," and whether or not the state has a compelling interest in defining marriage as a union between a man and a woman so as to foster procreation - are compelling legal questions that can only be answered at trial.

"The presentation of evidence is crucial to answering the questions" raised by the case, he said, adding that he sees the need for a "fuller record" in order to issue a ruling.

Trial has been set for January 2010, but may be delayed pending appeal of one Walker's pre-trial rulings.

Walker ruled on October 1 that the Prop 8 campaign must release internal campaign communications that may demonstrate animus - or discriminatory intent - towards same-sex couples.

Perry v. Schwarzenegger was filed in federal District Court on May 26, the same day the California Supreme Court ruled in Strauss v. Horton that Prop 8 was valid under the state constitution. Since the Strauss v. Horton ruling effectively ended hopes that California courts would strike Prop 8, the American Foundation for Equal Rights (AFER) turned to federal courts with the Perry case.

AFER's lead attorneys are Theodore Olson and David Boies, who argued on opposite sides in the 2000 Bush v. Gore lawsuit before the US Supreme Court. The lead attorney for the Prop 8 campaign is Charles Cooper.

Walker was skeptical of Cooper's argument that the state may restrict marriage to opposite sex couples in order to foster procreation. He noted that he recently presided over a wedding where the groom was in his 90s and the bride in her 80s.

"I didn't ask if they intended to procreate," the judge asked. "Should I have?"

Lambda Legal, the ACLU, and the National Center for Lesbian Rights - who won marriage equality through a California Supreme Court ruling in In re Marriages Cases, and tried to restore it in Strauss v. Horton - initially opposed the suit because they feared that a loss in federal court would set a negative precedent that could prove difficult to reverse.

The three organizations subsequently filed unsuccessful motions to intervene in the case, as did the conservative group Campaign for California Families. Walker turned down their motions in August, however.

Walker also denied a motion by AFER for a preliminary injunction that would allow legal marriages to continue until Perry is settled.

Judge Walker did, however, grant the City of San Francisco's motion to intervene as a plaintiff, but only to assess the financial impact that withholding same-sex marriage rights has on local governments.

California Attorney General Jerry Brown has declined to defend Prop 8, telling Judge Walker in June that it violates the US Constitution and should be struck down.

Olson and Boies are basing their case on the due process and equal protection clauses of the 14th Amendment. Originally adopted in 1868 to prohibit southern states from depriving newly freed slaves of citizenship rights, the 14th Amendment has since been interpreted to mean that state law may not restrict civil rights recognized by federal courts. It was the basis for the 1954 Brown v. Board school desegregation case, for example.

Olson argued that the California Supreme Court ruling in Strauss v. Horton created an anomalous legal situation for same-sex couples.

The California court ruled that Prop 8 should stand, and that the 18,000 same-sex marriages that were legally performed in the state before Prop 8 passed should also stand. Same-sex domestic partnerships - which have been legal in California since 1999 - were not challenged by Prop 8.

Consequently, "we have a crazy quilt of relationships in California" that discriminates against some same-sex couples, Olson concluded.

Questioned by Walker about how denying marriage rights to same-sex couples violates the equal protection clause, Olson insisted that any difference in treatment implies inequality.

"To say you will be identified a little bit different violates the equal protection clause. That is one of the things we could prove at trial," said Olson. "[Marriage] means so much to so many people. The federal government does make a distinction, and that has an effect."

Walker has a reputation for judicial eccentricity. He has required law firms to bid for the status of lead counsel in securities class-action suits, and has publicly called for legalization of drugs.

Walker was first nominated to the federal bench by Pres. Ronald Reagan but ran into opposition because of his membership in the all-male Olympic Club and his representation of the US Olympic Committee in a suit that prevented a Bay Area group from calling its athletic competition the "Gay Olympics."

He was subsequently appointed successfully by President George H. W. Bush.

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