Judge refuses to dismiss Prop 8 lawsuit

On the surface, the hearing in San Francisco on Tuesday about the federal challenge to Prop 8 was about the issues the court could swiftly dispose without the necessity of a trial next year that would pit supporters and opponents of marriage for same-sex couples against each other. But in ruling against Prop 8 proponents' pleas to dismiss the challenge entirely or even parts of it, Chief U.S. District Judge Vaughn Walker reaffirmed his desire to get as much evidence on the record from both parties for his decision to help guide the appellate and Supreme Court justices who almost inevitably will ultimately decide the case.

The marriage debate seemingly makes for strange bed-fellows. Attorneys for Prop 8 supporters tried twice to invoke the name of President Barack Obama twice on Tuesday to bolster their case. In turn, supporters of nuptials for gays and lesbians referenced an opinion conservative Supreme Court Justice Antonio Scalia wrote to dismiss the Prop 8 backers' attempts to get the court to limit the definition of marriage to opposite-sex procreational unions.

After hearing two hours of arguments, Walker said there were too many "mixed precedents" to sweep away a trial and lose a chance to create an evidentiary record for any future appeal.

"For those reasons," Walker said, "the motion for summary judgment will be denied."

As things now stand, Walker is scheduled to try the issue on Jan. 11. Proposition 8 proponents have balked at turning over some campaign preparation materials based on their belief would violate their First Amendment rights to free speech. Noting the battle over what materials they must turn over could bog down in an appeal that would happen as late as January, attorney Theodore Olson said if the Prop 8 backers did appeal an adverse finding he would like to once again ask the court to invoke a preliminary injunction to suspend Prop 8 until a decision is reached.

Proposition 8 attorney Charles Cooper based most of his arguments for tossing the challenge on parallels with the Supreme Court's ruling in Baker vs. Nelson in 1971, in which Minnesota denied a same-sex couple the right to get married. Walker said he feels there were numerous differences between the situation then in Minnesota, which has never recognized marriage for gays and lesbians as a Constitutional right, and California in 2008, which had allowed same-sex couples to marry before voters approved Prop 8.

Cooper attempted to squeeze the definition of marriage down to its role in the procreational process. Walker occasionally needed Cooper during his 50-minute presentation. And while Cooper argued same-sex marriages could damage the state's interests in heterosexual unions, Walker asked him how.

"I don't know," Cooper said. "We can't know. That's my point. Californians were entitled not to follow those examples (of stats granting marriage to same-sex couples,) to wait and see. That's the whole point of federalism."

One of the elements the opponents continue to challenge is California voters passed Prop 8 out of animus to gays. And Walker dismissed Cooper's characterization that finding it was passed out of animus would mean anyone who voted for Prop 8 was a bigot.

"That is really reading far too much into any decision," Walker said.