Judge Walker: Prop 8 Challenge to Continue to Trial

The Phillip Burton Federal Building and United States Court House, where today's hearing took place.

The Phillip Burton Federal Building and United States Court House, where today's hearing took place.

U.S. District Court Judge Vaughn Walker denied the Motion for Summary Judgment pressed by the proponents of Proposition 8 in Perry v. Schwarzenegger, the federal court challenge to ballot measure passed by California voters in 2008.  Judge Walker denied all of the grounds for summary judgment sought by the proponents, who are the Intervenor-Defendants in the case, which keeps the challenge on track toward its set January trial date.

Judge Walker ruled that a trial, or at least more evidence, is necessary before he can make a determination about what standard of review to apply when judging whether Proposition 8 violates the U.S. Constitution’s guarantees of due process or equal protection based on either sex or sexual orientation claims.

Importantly, Judge Walker struck a blow today to proponents’ claimed state interest of protecting “traditional” marriage, finding that “tradition alone is not enough.”  He likewise dismissed proponents’ claim concern about California becoming a “marriage mill” if same-sex marriages were allowed in the state.  Finally, Walked found that furthering male-female procreative protections was “suitable for a fuller development at trial.”  The Proposition 8 proponents had asked the judge to rule that the Plaintiffs had failed to show that Proposition 8 is unrelated to a legitimate state interest, which he refused to do.

Walker stated that neither Romer v. Evans nor Lawrence v. Texas foreclosed what level of scrutiny to apply in this case as to the claimed sexual orientation discrimination, but found instead that the determination requires a full factual record.  He noted that the Proposition 8 proponents’ failure to address the first two Carolene Products factors – immutability of the characteristic and political powerlessness of the affected group – impairs their argument against strict scrutiny.  These factors, Walker stated, are thus “prime issues for trial.”

Interestingly, Judge Walker also left open the door to a sex-based discrimination claim of Plaintiffs, stating that it was not possible to make a determination on this question as a matter of law and that a further factual record was necessary.

Judge Walker is hearing the challenge to Proposition 8.

Judge Walker is hearing the challenge to Proposition 8.

As to their due process claims, the Proposition 8 proponents argued that the due process right claimed by the Plaintiffs is a right to marry someone of the same sex.  Judge Walker held off on ruling that today, noting: “How one poses the question determines the answer.”  He raised Loving v. Virginia and Turner v. Safley as case in which the Supreme Court has addressed the fundamental rights of marriage itself.

Judge Walker rejected the argument advanced by the proponents that same-sex marriage would lead to polygamous or incestuous relationships being subject to constitutional protection. Walker noted that whatever legitimate state interests support prohibitions on such conduct for opposite-sex relations still apply in the same-sex context.

Questions about whether animus animated Proposition 8 and the relevance of that claimed animus, Walker ruled, would benefit from a more complete record to be developed at trial because both issues remain in dispute.

Finally, the Proposition 8 proponents had asked the Court to rule against the Plaintiffs based on the U.S. Supreme Court decision in Baker v. Nelson.  The Baker decision is a 1972 opinion by the Court dismissing a marriage case from Minnesota “for want of a substantial federal question.”  409 U.S. 810 (1972).  The Plaintiffs were represented today in court by Ted Olson.

The proponents of Proposition 8, represented today in court by Charles Cooper, argued that the brief Supreme Court dismissal in 1972 meant that no federal judge could hear a similar case because the only the Supreme Court could reverse its Baker opinion.  This was considered a very weak argument by many lawyers to consider the matter, particularly in light of Romer and Lawrence, and Judge Walker agreed.

Judge Walker earlier set a trial date for the challenge for January 2010.

[Ed. Note: This post was edited throughout the afternoon, with the final version being published at 6:30 p.m. Eastern time.]

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.