A federal judge in San Francisco said today he expects to keep a trial on California’s ban on same-sex marriage on track for Jan. 11, despite some possible last-minute refereeing of an evidence dispute by an appeals court.
U.S. District Judge Vaughn Walker told attorneys at a pretrial hearing, “It will be my plan to proceed beginning at 9 a.m. on Jan. 11.”
Walker will preside over a nonjury trial, expected to last several weeks, of a lawsuit in which two same-sex couples claim the marriage ban violates their federal constitutional rights.
The prohibition was enacted by California voters in 2008 as Proposition 8, an amendment to the state Constitution.
At the start of the hearing, Walker announced he had been told in a phone call that the 9th U.S. Circuit Court of Appeals is considering having an 11-judge panel review an earlier evidence ruling.
In the earlier decision, a three-judge panel said sponsors of Proposition 8 don’t have to give lawyers their internal communications about campaign strategy because disclosure would violate the free-speech rights of those who worked on the campaign.
Late today, the appeals court issued an order requiring both sides to file briefs by Dec. 24 on whether there should be a rehearing by an 11-judge panel.
The appeals court did not say when it will announce whether there will be a rehearing. But Walker said he expects the court will resolve the matter soon because it issued the earlier ruling quickly.
Theodore Olson, a former U.S. solicitor general who represents two same-sex couples, echoed that hope at a news conference following the hearing.
Olson said, “We’re ready. It’s obvious that our opponents and the judge are very well prepared. I’m confident that whatever needs to be done (in the evidence dispute) can be done on an expedited basis.”
The lawsuit filed in May by Kristin Perry and Sandra Stier, of Berkeley, and Paul Katami and Jeffrey Zarrillo, of Burbank, claims that Proposition 8 violates their federal constitutional rights to due process and equal protection.
The suit takes a new tack in legal battles over gay and lesbian marriage by centering on the U.S. Constitution.
A five-year-long series of court cases based on state constitutional issues came to an end on May 26 when California Supreme Court ruled that voters, in approving Proposition 8, had the power to amend the state document to prohibit same-sex marriage.
Walker said there is a chance that the trial might be televised, under a new rule being considered by the 9th Circuit Judicial Conference that would allow televising of some civil nonjury trials in district courts in nine western states.
But he said he would wait until the conference completes work on the possible rule before considering whether the trial should in fact be televised.
The judge also heard arguments on several other evidence disputes during a three-hour hearing and said he will rule on those later.
Proposition 8 added 14 words to the state Constitution: “Only marriage between a man and a woman is valid or recognized in California.”
