Motion to Dismiss Federal Prop 8 Suit Denied

A federal judge in San Francisco has ruled against Proposition 8 supporters seeking to dismiss a high-profile lawsuit that challenges the constitutionality of the California ballot measure that stripped gay and lesbian couples of the right to marry last year.

U.S. District Chief Judge Vaughn Walker ruled that the suit will go to trial in January as originally scheduled.

The suit was brought by former U.S. solicitor general Ted Olson and attorney David Boies, who argued opposing sides in the 2000 Bush v. Gore case. The attorneys represent two California gay couples who sued the state after they were denied marriage licenses. Voters approved Proposition 8 in November.

Earlier this month, Judge Walker ordered ProtectMarriage.com, a conservative group that worked to pass Prop. 8, to turn over some internal campaign documents and e-mails. Lawyers for the group have appealed the order, claiming it violates Prop. 8 supporters' First Amendment rights.

Judge Walker rejected the notion that the 1972 case Baker v. Nelson, a Minnesota same-sex marriage challenge, was a relevant precedent in deciding the prop. 8 case. He said that Romer v. Evans and Lawrence v. Texas, both of which established gays and lesbians as a discrete minority group, were much more relevant. He ordered both sides to move ahead with discovery.

It's interesting to watch the arguments unfold when the opponents of same-sex marriage are deprived of their main argument: anti-gay canards about the threat to children and to society.

Chuck Cooper, the attorney for Prop 8 proponents, made the case that only five states and seven countries worldwide had legalized same-sex marriage and that the cultural and moral imperative of heterosexual marriage was agreed upon almost universally and historically.

In his arguments for Prop. 8, Cooper returned again and again to the state's interest in promoting "natural procreative relationships of opposite sex couples" in producing the "next generation" of citizens. He said the onus should be on the plaintiffs to prove why this is not a compelling state institution.

Judge Walker showed his hand very early in the two hour argument when he interrupted Cooper and announced with a chuckle that he himself had just presided over the marriage of a "92-year-old and and 85-year-old" opposite sex couple. Even Cooper smiled and laughed, as did the packed audience, and Walker didn't need to elaborate further.

Cooper argued that while the state could not "generally" differentiate between fertile and interfile opposite sex couples, it was wise to draw the line at same-sex couples who by definition were "not fertile" -- at least with each other.

The judge pointed out that nearly 40 percent of pregnancies were to single women, so that the state did not require marriage as a precondition of marriage.

Cooper countered that the state has an "interest" in insuring that as many children as possible were raised in heterosexual relationships so the state does not have to make children wards of the "welfare system" both in the interest of the children and of the citizenry as a whole.

Judge Walker cited a U.S. Supreme Court precedent that ruled that prisoners had the right to marriage even thought they can't possibly serve the traditional role of parent. He wondered out loud why prisoners should have more rights than same-sex couples in the area of marriage.

Walker then asked, "How does same-sex marriage adversely affect opposite sex marriage?"

Cooper responded: "My answer is I don't know," generating gasps from the audience. He conceded that there was little or no evidence where same-sex marriage is legal that it has an relevance to opposite marriage. But he said that the state has a right to "stand back" and say no to same-sex marriage while watching it play out in "other jurisdictions, such as Massachusetts" and that it made sense that a majority of voters wanted "to move with caution" and to "proceed incrementally" with civil unions and domestic partnerships on such a big issue and not engage in a "radical experiment."

In his argument, Ted Olson, sporting a big head of red hair, was more fluent, and kept hammering home Walker's own questions about the supposed threat to opposite sex relationships from same-sex ones. He even slipped in a reference to the fact that his own mother had just gotten married. Since Olson is well over 50, the implication was clear.

Walker challenged Olson to explain why the definition of marriage mattered when in fact both sides in the case had already argued that gays already have the same legal relationship right as heterosexuals do in the state.

Olson said that "100 years ago" the nation might have said that immigrants could have all the rights of U.S. citizens but could not be called "citizens" and that would have had a terrible effect on them too. Marriage, he argued, has symbolic and cultural meaning that can leave those left out as "second class citizens"

Walker wanted to know why Loving v. Virginia, the 1967 Supreme Court case overturning all laws prohibiting inter-racial marriage, was relevant when in fact only 1/3 of states at the time prohibited such relationships. He said the court ruled when it was a far more established fact that Americans opposed racial marriage distinctions.

Olson argued that in fact the state of Virginia's argument was exactly the same as that of same-sex marriage opponents -- "that the law had been that way for a long time and so should stay that way for a long time."

Olson said it was the duty of the court to rule on the federal constitutional issue of due process and equal protection of the law, and not simply defer to the narrow majority of voters or to tradition.

Everyone had a laugh when Olson pointed out that S. Court Justice Antonin Scalia had opined in Romer that that the majority's logic that animus was the only reason for the Colorado antigay initiative made it impossible to argue against same-sex marriage. Walker said "it shows why those in the minority sometimes should not write dissenting opinions" as they can be used against them later.

Olson argued that the 18,000 same-sex grandfathered marriages had created a crazy quilt of laws and that the court need to address the inherent unfairness of that. "The irrationality of marriage distinctions was now enhanced by the strange patters of legal and illegal marriages today."