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Judge Wants to Expedite Trial in Federal Challenge to Prop 8

A federal judge hearing the Olson-Boies challenge to California's Proposition 8 indicated he's unlikely to issue an injunction that would have allowed same-sex couple to immediately begin marrying again, but also indicated he's eager to expedite the case:

Walker "In his first response to the lawsuit challenging Proposition 8, Chief U.S. District Judge Vaughn Walker of San Francisco said the case raises numerous issues that may need to be considered at a trial, including the history of discrimination against gays and lesbians and the intent and effects of the state constitutional amendment...Olson and Boies asked Walker to issue an injunction at a Thursday hearing that would suspend Prop. 8 and allow same-sex couples to marry while the case proceeds. In Tuesday's order, the judge said he has tentatively decided instead to move "directly and expeditiously" to a trial on the constitutionality of the measure. Halting enforcement of Prop. 8 at this stage 'may inject still further uncertainty,' Walker said. He noted that any couples who married as a result of an injunction would be unclear about their status until a final ruling. The judge said lawyers at Thursday's hearing could discuss how the case should proceed. Olson said he was pleased with Walker's approach, even though the ballot measure will remain in effect."

Also: "Walker said in his order...that past discrimination is relevant in evaluating a law that limits the right to marry. A related issue, he said, is 'whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians.' He said opponents of same-sex marriage may also need to present evidence to justify their arguments that children are best raised by a married mother and father, and that allowing gays and lesbians to wed 'destabilizes opposite-sex marriage.'"

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  1. What happens if this goes to the U.S. Supreme Court and the Legion of Judicial Doom (Scalia, Thomas, Roberts, Alito and Kennedy) get their paws on this? These are the same people who ripped apart Brown v the Board of Education. Plessy v. Ferguson for the 21st Century?

    Posted by: nate | Jul 1, 2009 10:12:41 AM


  2. YES. THIS should be the judicial approach. "Give us EVIDENCE that your discrimination actually saves children/society/straight marriage or you lose." Courts are equipped to determine the reliability of empirical evidence, and they will not be fooled by the crap studies that anti-gay extremists throw around. They have not a shred of real evidence to back up their claims, and that will become apparent.

    Posted by: Pender | Jul 1, 2009 10:15:57 AM


  3. "A related issue, he said, is 'whether the availability of opposite-sex marriage is a meaningful option for gays and lesbians.'"

    In the same way that the availability of same-sex marriage would be a meaningful option for straight men and women. In other words, no, unless nostalgia for the 1950s suddenly overcomes us.

    Posted by: Ernie | Jul 1, 2009 11:08:23 AM


  4. I'd love to send my Prop8 art piece to this judge. It displays the history and quotes of the religious right on Yeson8 yard signs, and clarifies the similarity of Prop8 to previous attempts at legislating hate.

    http://www.scottterryprojects.com/Prop8.html

    Posted by: Scott | Jul 1, 2009 11:46:30 AM


  5. This was actually a pretty brilliant move. An order either granting or denying a preliminary injunction is immediately appealable, so this case would go straight to the Ninth Circuit. In the meantime, if an injunction were granted, we'd face the prospect of another group of people married within a narrow window of time in which that was legal.

    The Federal Rules of Civil Procedure allow a judge, in effect, to punt. A court can order an expedited trial and consolidate the preliminary injunction motion with the trial. By choosing this approach, Judge Walker doesn't have to grant or deny the motion, and thus avoids this case going directly up on appeal (where, for example, the Ninth Circuit could deal just with the issues involved in seeking injunctive relief without definitively resolving the substantive issues). When he rules, it will be on the merits of the case, and not just on whether an injunction should issue.

    And he seems to have identified a lot of the key issues here. I think we're going to end up with a very thoughtful, detailed ruling, regardless of which way Judge Walker actually decides.

    The other interesting twist on all of this is that the outcry from LGBT "leaders" seems to be focused on what the SCOTUS will do when they get this case. But it's possible that they won't even take it. Many times, the Supreme Court waits for there to be conflicting Circuit Court opinions before taking a case. Or they have to decide that there's a really important issue of national interest at stake. Although it's unlikely, they could always just let the Ninth Circuit do whatever it wants without intervening at all.

    In any event, this is just a fascinating process. I hope to hell it works!

    Posted by: Dr. Pedantic | Jul 1, 2009 1:05:18 PM


  6. Dr. Pedantic, I hope you are right. But the stakes are awfully high. It seems pretty irresponsible to bring a case like this based on what one "hopes" will happen.

    Posted by: Chris | Jul 1, 2009 1:09:45 PM


  7. I simply HATE that we all sound like victims and pawns and submissives to whatever other people decide to do for us. The fact that OTHER PEOPLE are voting on whether or not I "should be ALLOWED" to see my husband when he is dying is enough to make me buy a gun and defend my right to do so when and if needed.

    Posted by: John Bisceglia | Jul 1, 2009 1:23:30 PM


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