Previously: Bid By Prop 8ers To Dismiss Case Against It In Court This Morning

4:21 PM: A federal judge in San Francisco refused today to dismiss a lawsuit challenging Proposition 8, California’s ban on same-sex marriage.

The decision by U.S. District Judge Vaughn Walker keeps the lawsuit filed by two same-sex couples on track for a trial on federal constitutional issues in January.

Walker turned down a bid by supporters of Proposition 8 for dismissal of the case in a summary judgment without a trial.

He said after a two-hour hearing that the case contains a number of issues that can be decided only after evidence is presented at a trial.

Walker said, “These are issues for trial. The presentation of evidence, I believe, is essential to these issues.”

The disputes include whether the U.S. Constitution gives same-sex couples a fundamental right to marry and whether Proposition 8 was enacted by the voters last November with discriminatory intent.

Among other arguments, the Proposition 8 sponsors contended the case could be dismissed as a legal matter without further evidence because the Constitution does not provide gays and lesbians a fundamental right to marry.

But Walker kept open the plaintiffs’ claim that the due process clause of the Constitution extends the basic right to marry to gays and lesbians.

He said, “The court cannot declare the due process claim foreclosed as a matter of law.”
A second key issue is what standard should be used to judge the constitutionality of Proposition 8.

Proposition 8 sponsors say the courts need only find a rational basis for the measure and that a rational basis is provided by tradition and by the state’s interest in having male-female couples produce and raise children.

The plaintiffs contend there must a strong justification because gays and lesbians are a historically persecuted group.

On that issue as well, Walker said he wants to hear evidence before deciding on the standard.

Walker said previous U.S. Supreme Court and appeals court rulings have given mixed precedents and the plaintiffs’ argument that a strict standard should be used is “not foreclosed as a matter of law.”

The two couples, Kris Perry and Sandy Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank, filed their federal lawsuit in May, four days before the California Supreme Court ruled that voters had the power to amend the state Constitution through Proposition 8.

Their lawyers include former U.S. Solicitor General Theodore Olson of Washington, D.C., and David Boies of Armonk, N.Y., who argued on opposite sides of the Bush v. Gore case that decided the 2000 presidential election. The lawsuit claims Proposition 8 violates their federal constitutional rights to due process and equal treatment.

Until the federal lawsuit was filed, a five-year-long battle over same-sex marriage in California centered on the state Constitution rather than the U.S. Constitution.

Some civil rights groups supporting gay marriage had previously avoided the federal court system out of a concern that a federal case could eventually result in an adverse U.S. Supreme Court ruling.

Proposition 8, enacted by 52 percent of voters on Nov. 4, overturned a decision in which the California Supreme Court said in May 2008 that the state Constitution provides a right to gay marriage.

While the state high court upheld the initiative, it left in place the 18,000 same-sex marriages that were performed before Proposition 8 was enacted.

Walker commented during today’s arguments that the existence of some same-sex marriages in California creates a “crazy quilt” of varying rights based on a unique set of facts.

When announcing his ruling, he said the marriage ban “potentially may be invalid in California” but that such laws may not be invalid in other states that have never recognized same-sex marriage.

The nonjury trial in Walker’s court is scheduled to begin on Jan. 11, unless it is delayed by evidence-gathering disputes.

Walker’s future decision in that trial is considered certain to be appealed to the 9th U.S. Circuit Court of Appeals and then the U.S. Supreme Court.

Olson told Walker during the hearing, “Same-sex marriage does not diminish, dilute or deter opposite-sex couples from getting married.”

He argued that the same-sex couples’ right to marry “is an individual right, not a right granted by the state.”

Charles Cooper, representing the sponsors of Proposition 8, said, “We agree that the name ‘marriage’ means a lot.”

But he contended it was reasonable for California to reserve the word for heterosexual unions because same-sex couples can turn to domestic partnerships with similar rights and responsibilities.

Cooper argued, “It nonetheless follows that it is rational for the state of California to establish parallel institutions for these two very different kinds of relationships and to use different names.”

1:49 PM: A federal judge in San Francisco today refused to dismiss a lawsuit challenging Proposition 8, California’s ban on same-sex marriage.

U.S. District Judge Vaughn Walker announced his decision early this afternoon following a morning hearing. The case will now go to trial on Jan. 11.

The lawsuit was filed in May by a lesbian couple from Berkeley and a gay couple from Burbank who claim the state law violates their federal constitutional rights.

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