Federal Judge Wants Prop. 8 Case Heard--Pronto

by Roger Brigham

EDGE Media Network Contributor

Tuesday June 30, 2009

In a surprise development late Tuesday, U.S. District Chief Judge Vaughn Walker told opposing attorneys in a federal challenge to California's same-sex marriage ban that he wants to hold off on a requested preliminary injunction and get ready to begin the trial.

Judge Walker had been scheduled to hold a hearing Thursday morning on the request by attorneys Theodore Olson and David Boies, who are representing two-same sex couples who have been denied marriage licenses in California, for a preliminary injunction that would put Prop 8 on hold. After the state Supreme Court ruled in early 2008 that the state must allow same-sex marriages, voters passed Prop 8 last November, amending the state's Constitution to restrict state recognition of marriage to just opposite sex couples.

A state challenge to Prop 8 failed in May.

But shortly before 4 p.m. local time Tuesday, Judge Walker filed an order calling for Thursday's hearing to be changed to a "case management conference" to work out a schedule for the trial.

"Given that serious questions are raised in these proceedings," Walker wrote in his order, "issuance of preliminary injunctive relief on an incomplete record may inject still further uncertainty in an important area of concern and interest to the state and its citizens. To avoid the procedural and practical problems surrounding a preliminary injunction, the court is inclined to proceed directly and expeditiously to the merits of plaintiffs' claims and to determine, on a complete record, whether injunctive relief may be appropriate."

The judge took note that there were concerns about what would happen with the legality of marriages granted under a preliminary injunction should the court challenge fail as well Attorney General Jerry Brown's assertion, as the defender of record of Prop 8, that he believes Prop 8 is unconstitutional, when he wrote, "In the absence of persuasive reasons to the contrary presented by the parties at the July 2 hearing, the court will CONTINUE [sic] the hearing on the preliminary injunction in favor of a case management conference."

Brown will not present the defense of Prop 8 in the case. In his order Tuesday, Walker accepted the request of the Alliance Defense Fund to act as an intervening party.

"We are encouraged that the judge wants to dispense with the preliminaries and move quickly toward a final ruling on the unconstitutionality of Proposition 8," Olson said. "This case is about protecting people's fundamental constitutional rights, and we agree that it is in everyone's best interest to resolve this matter as quickly as possible. We are prepared to move forward at as fast a pace as the court desires."

As expected, the American Civil, Liberties Union, Lambda Legal and the National Center for Lesbian Rights filled briefs last week supporting the Prop 8 challenge. San Francisco City Attorney Dennis Herrera had filed a supporting brief previously. Both Brown and Gov. Arnold Schwarzenegger have declined to defend the constitutionality of the same-sex marriage ban in papers filed with the courts.

The suit challenging Prop 8 says the law violates the due process clause, violates equal protection promised in the Fourteenth Amendment, relegates gays and lesbians to second-class status and discriminates on the basis of gender and sexual orientation.

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.